HomeMy WebLinkAbout01- Council Office CITY OF SAN BER"44RDINO - REQUEST FOR '°PUNCIL ACTION
From: Councilwoman Valerie Pope-Ludlam, Sixth Ward Subject: Special Election/Card Clubs
Dept: Council Office
Date: September 21, 1995
Synopsis of Previous Council Action:
Recommended Motion:
MOTION A - To reconsider the Resolution of the Mayor and Common Council of the City of San
Bernardino calling a Special Election and submitting to the electors a measure to allow Card Clubs
within the City of San Bernardino.
MOTION B - That full reading of the Resolution be waived; and that said resolution be adopted.
Signature
Contact Person: Councilwoman Pope-Ludlam Phone: 5378
Supporting Data Attached: no Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct.No.)
(Acct. Description)
Finance:
Council Notes:
AGENDA ITEM NO.�_
1 f
(e�h
Oc r 25, 1995
The Honorable Tom Minor, Mayor
Members of the City Council
City of San Bernardino
Re: Gaming referendum
Dear Mr. Mayor and members of the City Council:
It was with great dismay that we read of Dr. Curlin's attempt to change his vote on last
Wednesday's gaming issue. To attempt to change a vote after so short a period of time
raises serious questions. Nevertheless, since employment obligations preclude my
attendance at Monday's Council meeting, we ask you to consider the following.
The intent on the part of Rounding Third to keep this matter out of the public scrutiny
should cause warning bells to go off all over the City, and especially in Council chambers!
This Council has evidenced an admirable practice of openness. Should any less be
expected from those with whom the Council deals? Particularly on those matters
involving the expenditure of scarce public funds. Since land has already been purchased
by Rounding Third and/or its principals, fear of inflated real estate prices is no excuse for
failure to keep the public actively apprised of all proceedings. Ours is a society and
political system based on openness and the dissemination of accurate information. One is
left to speculate what Rounding Third has to hide and why it should want to do so. We
would request that the Council have no further dealings with this organization which fears
public scrutiny.
As keepers of the public trust, we, the voters, look to you to protect such basic matters as
the reputation of our City. The City already has an image problem and to add gambling
can only tarnish that image further. Again, please expend your efforts and public funds on
those activities that enhance the image of the City. To do anything less, even in the name
of financial expediency, is to abuse the trust reposed in you.
It has recently come to my attention that the City of Bell, California relied heavily on tax
revenues from a card parlor. After years of reliance on those funds, the card parlor
closed, leaving the city gasping for financial breath. Gaming did nothing for that city and
general blight only worsened to the point, as I understand it,that the card parlor chose
more secure, and profitable, environs. Can San Bernardino expect any less?
Finally,the moral issue cannot be ignored. Most of you, if not all, were raised in homes
where gambling was not only not encouraged, but was considered immoral. Certainly, the %/J'
cities you resided in as youth would not have considered even for a moment the provision
you are now considering. I must then ask, why throw out now generations of moral .,47/
n
Mayor Minor and Council
September 25, 1995
Page two
values in the name of financial expediency? What has changed that what was once
considered immoral is now appropriate? Can your values be purchased for money or
influence? The moral aspect cannot be sidestepped or ignored. It is there, it will always
be there and you must address it or publicly declare your inability to choose between right
and wrong.
Dr. Curlin, you swore an oath to "lead your [life]...in uprightness and honor".
(Hippocratic Oath) This oath is beyond that which you took when elected. We plead
with you now to take the honorable and upright lead in defeating this matter. You are
eminently qualified to do so.
Councilman Hernandez, please use your prodigious talents and abilities in positive ways to
solve financial concerns. No one doubts your intense interest in the welfare of our City.
But we do believe you are capable of much more positive efforts- efforts that will not
only benefit the City financially but also provide for its bright and positive image now and
for our children and grandchildren.
Please know that as voters and taxpayers, we are totally opposed to this provision. Please
add our voices to the many others similarly concerned.
Sincerely,
Kirk S. &Debra L. Garvin
3929 Ferndale Ave.
San Bernardino, CA 92404
S A R
Y � �
CITY OF SAN BERNARDINO
OFFICE OF THE CITY ATTORNEY
JAMES F. PENMAN
City Attorney
Opinion No. 95-09
September 25, 1995
TO: Mayor Tom Minor
RE: Necessity of Holding an Election to Authorize Card Rooms within the City
ISSUE
The question has been presented whether the Mayor and Common Council of the City of San
Bernardino can adopt an ordinance allowing card rooms within the City without the necessity of
putting the matter to a vote of the people, as specifically required by state law.
CONCLUSION
The City of San Bernardino, even under its charter powers, may not authorize card rooms
within the city without a vote of the electorate. To attempt to do so would expose the city to liability
for the expenditure of any funds in reliance thereon.
ANALYSIS
Chapter 9.44 of the San Bernardino Municipal Code, adopted in 1913, and amended in 1965,
prohibits all games of chance not otherwise prohibited by the California Penal Code [see Penal Code
§ 330 and § 330a], and not otherwise specifically allowed by other provisions of state law [see for
instance the State Lottery provisions at Government Code § 8800 et seq.]. Specifically this chapter
provides:
DAB/tbm[Gaming.opn]
CITY HALL
300 NORTH 'D'STREET • SAN BERNARDINO. CALIFORNIA 924113 �" //
Mayor Tom Minor
September 25, 1995
Page 2
"It is unlawful for any person, either as principal, agent, employee or
otherwise, knowingly to permit any house, room, apartment or place owned
by him or under his charge or control, to be used in whole or in part for
playing, conducting, dealing or carrying on therein any game of chance not
mentioned in sections 330 and 330a of the Penal Code of the state or other
state law, with cards, dice, billiard balls, pool balls, cues, pins, checkers,
counters, quoits, beans, spindles, tables, wheels, or machines, or any other
device, contrivance or apparatus, for money, checks, chips, credit or any other
representative of value or for any merchandise or any other thing of value."
(San Bernardino Municipal Code § 9.44.010)
The chapter also adds:
"It is unlawful for any person to play or bet at or against, or as owner or
employee to open, deal, play, carry on or conduct, any game of chance not
mentioned in Section 330 or 330a of the Penal Code of the state or other state
law, which is played, conducted, dealt or carried on with cards, dice, billiard
balls, pool balls, cues, pins, checkers, counters, quoits, beans, spindles, tables,
wheels, machines or any other device, contrivance or apparatus, for money,
checks, chips, credit or any other representative of value or for any
merchandise or any other thing of value." (San Bernardino Municipal Code
§ 9.44.020)
Pursuant to the authority found in Penal Code § 326.5, the City has also authorized bingo by
certain, qualifying, non-profit organizations [see San Bernardino Municipal Code Chapter 5.36].
Business and Professions Code § 19819, adopted in 1983, but effective on July 1, 1984, now
requires:
"No gaming club shall be located within the territorial limits of any county,
city, or city and county which had not permitted gaming clubs prior to January
1, 1984, unless a majority of electors voting thereon affirmatively approve a
measure permitting legal gambling within that city, county, or city and county.
Prior to this enactment, there was no necessity for an election to authorize gaming within a
city. The city's legislative body could do so merely by the passing of an ordinance. But for those
municipalities which wished to introduce gaming into their communities after the specified date of
January 1, 1984, an election would be necessary.
DAB/tbm [Gaming.opnl
Mayor Tom Minor
September 25, 1995
Page 3
SB 100 approved by the Legislature on July 29, 1995, signed by the Governor on August 3,
1995, and filed with the Secretary of State on August 7, 1995, among other things added Business
and Professions Code § 19819.5 to read as follows:
"(a) On and after January 1, 1996, neither the governing body nor the electors
of a county, city, or city and county that has not authorized legal gaming
within its boundaries prior to January 1, 1996, shall authorize legal gaming.
(b) No ordinance in effect on January 1, 1996, that authorizes legal gaming
within a county, city, or city and county may be amended to expand gaming
in that jurisdiction beyond that permitted on January 1, 1996.
(c)This section shall remain in effect only until January 1, 1999, and as of that
date is repealed, unless a later enacted statute, which is enacted before
January 1, 1999, enacts a comprehensive scheme for the regulation of gaming
pursuant to this chapter under the jurisdiction of a gaming or gambling control
commission."
It is apparent that this statute gives some urgency to the question. If gaming is not authorized
before January 1, it may not then be authorized for the period of the moritorium.
In the discussions involving these issues the use of the terms "gaming" and "gambling" are
both used with an apparent attempt to somehow differentiate between the two. In practice it seems
that"gaming" is usually used to refer to card rooms as they are legalized in various areas of the state,
and "gambling" is used to refer to other types of games of chance. As legally defined, however,
"gaming" and"gambling" have the same meaning, and can be used interchangeably (See Business and
Professions Code § 19802 and Black's Law Dictionary, 5th Ed.).
As a charter city the City of San Bernardino is in many cases not subject to the general laws
and may legislate in areas that are determined to be municipal affairs. However if a state enactment
is determined to be a matter of statewide concern, it will be applicable to the city despite any contrary
charter or ordinance provision.
There is no standard definition of what is a municipal affair and the courts must make the
determination on a case by case analysis (California Fed. Savings & Loan Assn.. v City of Los
Angeles (1991) 54 Cal.3d 1, 17). A legal treatise on California municipal law states:
"Generally speaking, the term `municipal affairs' has reference to the internal
business affairs of a city. If a matter is of statewide concern and beyond the
exclusive control of the city, it is not a municipal affair and not subject to local
control." (45 Cal Jur 3d "Municipalities" § 99, footnotes omitted)
DAB/tbm[Gaming.opn]
Mayor Tom Minor
September 25, 1995
Page 4
However, the courts have consistently held:
"When there is a doubt as to whether an attempted regulation relates to a
municipal or to a state matter, or if it be the mixed concern of both, the doubt
must be resolved in favor of the legislative authority of the state." (People v.
:Moore (1964) 229 Ca1.App.2d 221, 225)
Looking at Business and Professions Code § 19819 as part of the entire statutory scheme
relating to gaming within the state, it cannot be seriously contended, as has been done by some, that
the statute is only an elections provision. It is not. It is a provision outlining how gaming must be
authorized. Elections statutes are those that regulate how elections are to be conducted, not what
subjects must be placed before the electorate.
There is no question that the Legislature intended the provision to apply to charter cities such
as San Bernardino. The drafters specifically used the term "city and county." The only "city and
county" in the state is the City and County of San Francisco, a charter city and county. The State
Constitution requires that if a county and its cities consolidate into a combined city and county, the
result must be a charter city and county (California Constitution, Article 11, § 6). The result is that
the Legislature knew full well what is said when it used the term"city and county." It meant charter
entities such as the City of San Bernardino.
In 1991 the State Supreme Court examined a similar issue with regard to an attempt by the
City of Los Angeles to tax banks and other financial institutions. The power of taxation had
historically been considered as "an essential function of municipal government, secure against
legislative usurpation" (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54
Cal.3d 1, 13). The court went on to state that under the court-established procedures to determine
whether a subject falls within a municipal affair or was a matter of statewide concern whole areas
should not be cordoned off for one or the other, but the relationship is a fluid one, moving as the
needs dictate. The court declared:
"When a court invalidates a charter city measure in favor of a conflicting state
statute, the result does not necessarily rest on the conclusion that the subject
matter of the former is not appropriate for municipal regulation. It means
rather,.that under the historical circumstances presented, the state has a more
substantial interest in the subject than the charter city." (California Fed.
Savings&Loan Assn.., at 18)
The inescapable result is that the State Legislature meant the provision to apply to charter
cities. Where such an intent is found any doubt is resolved in favor of the Legislative enactment and
DAB/tbm [Gaming.opnl
Mayor Tom Minor
September 25, 1995
Page 5
against a city ordinance. The courts would certainly find that a state statute, as part of the state
scheme to regulate gaming in this state, is a matter of statewide concern and must prevail over a
conflicting city action.
It is our opinion that an ordinance to authorize gaming in the City of San Bernardino as a
change to an ordinance prohibiting such gaming adopted in 1913, must comply with the state
requirement of a prior vote of the electorate.
It has been contended that other cities have adopted gaming ordinances without a vote of the
people, apparently concluding that San Bernardino should not have to comply with state statutes that
others may have ignored. First of all, violation of the law by others does not justify or authorize the
City of San Bernardino to do the same. Secondly, the only city that has been specifically suggested
to us as having done so is the City of Compton. We contacted the City of Compton and obtained a
copy of their ordinances. They first adopted an ordinance many years ago authorizing gaming and
recently approved an amendment to that ordinance restricting the gaming activities. It was not an
ordinance authorizing gaming as covered by Business and Professions Code § 19819, quoted above,
and therefore did not fall under the requirement to have an election.
This very question of calling for an election was discussed by the Mayor and Common
Council at an adjourned meeting held on Wednesday, September 20, 1995, which was the last day
that an election could be called for this year. (See San Bernardino Municipal Code § 2.56.170
Special Elections). The vote to call such a special election failed on a vote of three in favor, three
opposed, and one abstention. The supporters of gaming cannot then circumvent the requirement of
a vote of the people, which was not authorized by the Council, by declaring that it was not needed
in the first place.
DAB/tbm [Gaming.opn]
Mayor Tom Minor
September 25, 1995
Page 6
Since the issue must be submitted to the voters for their approval and the time to do that
before the imposition by the state of a moritorium has passed, it seems clear that, for the time being,
the issue is dead.
Respectfully submitted,
"Y2, �14
DENIMS BARLOW
Sr. Asst. City Attorney
Concur:
JAMES F. PENMAN
jcc:it
y Attorney
Council Members
Rachel Clark, City Clerk
David C. Kennedy, City Treasurer
Shauna Clark, City Administrator
All Department Heads
DAB/tbm[Gaming.opn]
CITY OF SAN BERNARDINO
INTEROFFICE MEMORANDUM
��. M
-771
TO: The Mayor and Common Council of the City of San Bernardino
FROM: Dennis A. Barlow, Sr. Asst. City Attorney
.n
-�c
DATE: September 20, 1995
RE: Necessity of Holding an Election to Authorize Card Rooms within the City
On Friday, September 15, 1995, Mr. Warner Hodgdon provided this office with a draft
legal opinion from his attorneys which addressed the issue of whether the Mayor and Common
Council of the City of San Bernardino could adopt an ordinance allowing card rooms within the
City without the necessity of putting the matter to a vote of the people, as specifically required
by state law. Their conclusion was, "Probably." (at pg. 3) We have been asked to review this
area and indicate whether we agree with the conclusions of Mr. Hodgdon's attorneys.
Chapter 9.44 of the San Bernardino Municipal Code, adopted in 1913 and in effect since
that time, currently prohibits all games of chance not otherwise prohibited by the California Penal
Code [see Penal Code § 330 and § 330a], and not otherwise specifically allowed by other
provisions of state law [see for instance the State Lottery provisions at Government Code § 8800
et seq.]. Pursuant to Penal Code § 326.5 the City has also authorized bingo by certain,
qualifying, non-profit organizations [see San Bernardino Municipal Code Chapter 5.36].
Business and Professions Code § 19819, adopted in 1983, but effective on July 1, 1984,
now requires:
"No gaming club shall be located within the territorial limits of any county,
city, or city and county which had not permitted gaming clubs prior to
January 1, 1984, unless a majority of electors voting thereon affirmatively
approve a measure permitting legal gambling within that city, county, or
city and county. "
SB 100 approved by the Legislature on July 29, 1995, signed by the Governor on August
3, 1995, and filed with the Secretary of State on August 7, 1995, among other things added
Business and Professions Code § 19819.5 to read as follows:
DAB/tbm [Gaming.mem]
Mayor and Common Council
September 20, 1995
Page 2
"(a) On and after January 1, 1996, neither the governing body nor the
electors of a county, city, or city and county that has not authorized legal
gaming within its boundaries prior to January 1, 1996, shall authorize legal
gaming.
(b) No ordinance in effect on January 1, 1996, that authorizes legal gaming
within a county, city, or city and county may be amended to expand
gaming in that jurisdiction beyond that permitted on January 1, 1996.
(c) This section shall remain in effect only until January 1, 1999, and as of
that date is repealed, unless a later enacted statute, which is enacted before
January 1, 1999, enacts a comprehensive scheme for the regulation of
gaming pursuant to this chapter under the jurisdiction of a gaming or
gambling control commission."
It is apparently this statute that gives some urgency to the question. If gaming is not
authorized before January 1, it may not then be authorized for three years.
As a charter city the City of San Bernardino is in many cases not subject to the general
laws and may legislate in areas that are determined to be municipal affairs. However if a state
enactment is determined to be a matter of statewide concern, it will be applicable to the city
despite any contrary charter or ordinance provision.
There is no standard definition of what is a municipal affair and the courts must make the
determination on a case by case analysis (California Fed. Savings & Loan Assn.. v. City of Los
Angeles (1991) 54 Ca1.3d 1, 17). A legal treatise on California municipal law states:
"Generally speaking, the term `municipal affairs' has reference to the
internal business affairs of a city. If a matter is of statewide concern and
beyond the exclusive control of the city, it is not a municipal affair and not
subject to local control." (45 Cal Jur 3d "Municipalities" § 99, footnotes
omitted)
However, the courts have consistently held:
"When there is a doubt as to whether an attempted regulation relates to a
municipal or to a state matter, or if it be the mixed concern of both, the
doubt must be resolved in favor of the legislative authority of the state."
(People v. Moore (1964) 229 Cal.App.2d 221, 225)
DAB/tbm [Gaming.meml
Mayor and Common Council
September 20, 1995
Page 3
In their analysis of this issue the attorneys for Mr. Hodgdon in their undated
memorandum, conclude that the subject covered by Business and Professions Code § 19819,
quoted above, is either a gaming statute or a statute relating to voter approval requirements. If
the latter, then they conclude that since elections are generally determined to be municipal affairs
then the city could go ahead and ignore the state statute. If, on the other hand, it is determined
to be a gaming statute then they concede that it is at least a matter that falls within both the city
and state purview (at pg. 11). Under the rule cited in the Moore case, quoted above, any doubt
and any conflict must be resolved in favor of the state enactment.
Looking at Business and Professions Code § 19819 as part of the entire statutory scheme
relating to gaming within the state, it cannot be seriously contended that the statute is only an
elections provision. It is not. It is a provision outlining how gaming must be authorized.
There is no question that the Legislature intended the provision to apply to charter cities
such as San Bernardino. The drafters specifically used the term "city and county." The only
"city and county" in the state is the City and County of San Francisco, a charter city and county.
The State Constitution requires that if a county and its cities consolidate into a combined city and
county, the result must be a charter city and county (California Constitution, Article 11, § 6).
The result is that the Legislature knew full well what is said when it used the term "city and
county." It meant charter entities such as the City of San Bernardino.
In 1991 the State Supreme Court examined a similar issue with regard to an attempt by the
City of Los Angeles to tax banks and other financial institutions. The power of taxation had
historically been considered as "an essential function of municipal government, secure against
legislative usurpation" (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54
Cal.3d 1, 13). The court went on to state that under the court-established procedures to determine
whether a subject falls within a municipal affair or was a matter of statewide concern whole areas
should not be cordoned off for one or the other, but the relationship is a fluid one, moving as the
needs dictate. The court declared:
"When a court invalidates a charter city measure in favor of a conflicting
state statute, the result does not necessarily rest on the conclusion that the
subject matter of the former is not appropriate for municipal regulation.
It means rather, that under the historical circumstances presented, the state
has a more substantial interest in the subject than the charter city."
(California Fed. Savings & Loan Assn.., at 18)
The inescapable result is that the State Legislature meant the provision to apply to charter
DAB/tbm [Gaming.meml
Mayor and Common Council
September 20, 1995
Page 4
cities. Where such an intent is found any doubt is resolved in favor of the Legislative enactment
and against a city ordinance. The courts would certainly find that a state statute, as part of the
state scheme to regulate gaming in this state, is a matter of statewide concern and must prevail
over a conflicting city action.
It is our opinion that an ordinance to authorize gaming in the City of San Bernardino as
a change to an ordinance prohibiting such gaming adopted in 1913, must comply with the state
requirement of a prior vote of the electorate.
We have attached a copy of the draft opinion from Mr. Hodgdon's attorneys. A full
reading will disclose how very tentative their conclusion is.
Dennis A. arlow
DAB/tbm [Gaming.meml
MUDGE ROSE GUTHRIE ALEXANDER & FERDON
180 MAIDEN LANE 2 I ST FLOOR 2121 K STREET, N.w.
NEW YORK. NEW YORK ICC38.4996 WASHINGTON, O.C. 20037-1898
212-51 333 SOUTH GRAND AVENUE
O-510 7.02-429.9355
630 FIFTH AVENUE LOS ANGELES, CALIFORNIA 9007 1 - 1 5 2 S SUITE 900, NORTHBRIOGE CENTRE
SUITE 650 2 1 3-61 3-1 1 1 2 515 NORTH FLAGLER ORIVE
NEW YORK, N.Y. 10111.0144 WEST PALM BEACH,FL. 33401-4334
21 2.332-1600 407.850.810,0
FACSIMILE'
MORRIS CORPORATE CENTER'WO 12. RUE DE LA vA1X
2'3-680-1 35a
ONE UPPER PONO ROAD SLOG. O 75002.PARIS, FRANCE
PARSIPPANY,NEW JERSEY 07054-1075 111 42.61.57. 71
201-335-0004
1NFIN1 AKASAKA
6-7-15 AKASAKA, MINATO-KU
DONALD L. HUNT TOKYO 107,JAPAN
PARTNER 1031 3423•3970
DRAFT
MEMORANDUM
(For Discussion Purposes Only)
TO: Double Eagle Sports Internationale (Double Eagle) September 15, 1995
FOR: Consideration and Further Action by the Mayor and Common Council, City Attorney
and Economic Development Commission
(July 26, 1995 City/EDA Commission Unanimous Motion and Directive, i.e., ... 'The Sports Gardens"-_
Stadium/Complex Private Enterprise Investment and Plan of Fumace)
RE: PERMISSIBILITY OF ORDINANCE ALLOWING FOR THE OPERATION OF A
GAMING OR OTHER TYPE OF CASINO FACILITY IN THE CITY OF SAN
BERNARDINO AND IMPLEMENTATION OF, BUT NOT LIMITED TO, THE
SAN BERNARDINO DOWNTOWN PLAN.
BACKGROUND
You have requested us to review the City Charter, Government Code and other
data and documentation applicable to the permissibility of an Ordinance allowing for the
operations of a gaming or other type of casino facility in the City of San Bernardino. This
includes our review of the May 15, 1995 Exclusive Negotiating Agreement (the 0Agreement")
between Rounding Third, LLC (Rounding Third) and the Economic Development Agency (the
"Redevelopment Agency") of the City of San Bernardino. The fully executed Agreement was
provided to Double Eagle on August 4, 1995 by the Agency along with the Agency's July 31,
1995 Letter to Rounding Third and acknowledgement of consent to the terms and conditions set
forth therein as to Double Eagle Participation.
LA01 \6345\23624.13 95573.1
TABLE OF AUTHORITY
Tab
Constitution of the State of California, § 5 City charter provisions . . . . . . . . . . . . . . A
Charter of the City of San Bernardino, § 33 Ordinances - Publication . . . . . . . . . . . . . B
California Business & Professional Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C
§ 19800 Citation of chapter
§ 19801 Legislative intent; Construction of provisions
§ 19819 Approval of electors required for locating gaming
club in municipality; Exception
§ 19824 Enactment of municipal ordinances
California Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C
§ 330 Gaming
California Code of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C
§ 1060 Declaratory relief
§ 1085 Issuing courts, and writs of mandates
§ 1086 Issuance on petition when ordinary remedy inadequate
CASE LISTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D
California Federal Savings & Loan Ass'n v. City of Los Angeles, 54 Cal.3d 1 (1991) . . . 1
Johnson v. Bradley, 4 Cal.4th 389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Cox Cable San Diego V. City of San Diego, 188 Cal.App.3d 952 . . . . . . . . . . . . . . 3
Fendrich v. Van de Kamp, 182 Cal.App.3d 246 . . . . . . . . . . . . . . . . . . . . . . . . . . 4
fCo fineau, 68 Cal.App.3d 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rees v. Layton, 6 Cal.App.3d 815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Socialist PaM vv._Uhl, 155 Cal. 776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
City of Redwood City v. Moore, 231 Cal.App.2d 563 . . . . . . . . . . . . . . . . . . . . . . . 8
Muehleisen v. Forward, 4 Cal.2d 17 . . . . . . 9
Scheafer v. Herman, 172 Cal. 338 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
People v, ex rel. Martin v. Worswick, 142 Cal. 71 . . . . . . . . . . . . . . . . . . . . . . . 11
Lawing v. Faull, 227 Cal.App.2d 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
In re Portnoy, 21 Cal.2d 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
City of Santa Monica v. Grubb, 245 Cal.App. 2d 718 . . . . . . . . . . . . . . . . . . . . . . 14
City of Santa Clara v. Von Raesfeld, 3 Cal.3d 239 . . . . . . . . . . . . . . . . . . . . . . . . 15
LA01 \6345\23624.13 i 45573.1
City of Redondo Beach v. Taxpayers. Property Owners etc. City of Redondo Beach,
54 Cal.2d 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
City of Ontario v. Superior Court of San Bernardino County, 2 Cal.3d 335 . . . . . . . .I . 17
Glendale City Employee's Ass'n v. City of Glendale, 15 Cal.3d 328 . . . . . . . . . . . . . 18
Lane v. City of Redondo Beach, 49 Cal.App.3d 251 . . . . . . . . . . . . . . . . . . . . . . . 19
Walker v. Los Angeles County, 55 C.2d 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Associated Boat Industries of Norther California v. Marshall, 104 Cal.App.2d 21 . . . . . 21
Residents of Beverly Glenn, Inc. v. City of Los Angeles, 34 Cal.App.3d 117 . . . . . . . 22
Hagan v. Fairfield, 238 Ca1.App.2d 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
LA01 \6345\23624.13 I1 95573.1
The City and Redevelopment Agency desire to have certain property within the
Central City South Redevelopment Project Area of the Agency, established pursuant to
Ordinance No. 3572 and as amended by Ordinance No. MC-564 (the "Project Area"),
development in furtherance of the Redevelopment Agency's redevelopment objectives.
The City and Redevelopment Agency desire to cause approximately thirteen
(13) acres for the property to be developed as a sports, recreation, entertainment complex
including, and centered about, a stadium suitable as a home facility for a minor league
professional baseball team, with the balance to be devoted to commercial activity focused on a
gaming or other type of casino facility. The 13 acre site is referred to as the "Stadium Site",
the 30 acre site is referred to as the "Entertainment Site", and the entire 43 acre sports/gaming
proposed development is referred to as the "Complex".
The City and Redevelopment Agency May 15, 1995 Agreement recognized that
the Rounding Third team has experience in the development and financing of sports, recreation
and related stadium and facilities, including but not limited to, the experience and expertise in
the financing and development of gaming facilities which operate under and in accordance with
the provisions of the laws of the State of California and the municipalities in which such gaming
facilities are located. The Agency July 31, 1995 Letter to Rounding Third which
acknowledgement of consent to the terms and condition set forth therein as to Double Eagle
Participation was also provided to Double Eagle on August 4, 1995.
The City and Redevelopment Agency have further recognized in the May 15,
1995 agreement that constructing a City of San Bernardino ("City") owned baseball stadium and
financing and development of a world class "Complex" requires sources of revenue other than
those usually available to the Redevelopment Agency. Accordingly, following the June 5, 1995
request of the City and Redevelopment Agency, Double Eagle subsequently prepared "The
Sports Gardens" (Stadium/Complex area) private capital investment and plan of finance. The
submittal thereof received the unanimous Common Council and Economic Development
Commission applicable directive at their meeting of July 24, 1995.
On July 24, 1995 and September 5, 1995 the Council/EDA Commission
approved the interim plan of finance for the stadium only ($13 million construction costs and
t$1.7 million land costs). In addition, on August 21, 1995, the Council/EDA Commission
concurrently awarded the contract for the required rough grading and applicable environmental
"clean-up" of the stadium site (±29 acres). The stadium construction costs may increase at the
time it becomes integrated as part of the contemplated "The Sports Garden" overall
Stadium/Complex, recreation, health and commercial development area (at 215 east to "E" street
and Rialto Avenue to Mill Street).
Therefore, the general purpose of this memorandum is for the further
consideration and action by the Mayor, Common Council, City Attorney and Economic
Development Commission.
LA01 \6345\23624.13 2 95573.1
INTRODUCTION
The City of San Bernardino is a charter city (the "City"). The City's charter
neither prohibits the operation of gaming clubs within the City's jurisdiction nor requires any
voter approval prior to the operation of a gaming club or other type of casino facility within the
City's jurisdiction.
California Business and Professions Code §19819 (the "State Voter Approval
Provision," however, purportedly requires that a majority vote approval be obtained prior to
allowing the operation of gaming clubs within a city.
You have asked us to advise you as to whether or not the City's existing
ordinance may be amended to allow for the operation of a gaming or other type of casino facility
without voter approval (the "Ordinance"). Whether the Ordinance or the State Voter Approval
Provision controls in light of this apparent conflict is the main issue discussed in this
memorandum. Additionally, if the City does enact the Ordinance, this memorandum provides
two methods by which the City may obtain a judicial determination of the validity of the
Ordinance; namely, a petition for writ of mandate and an action for declaratory judgment.
For purposes of the analysis below, it is assumed that the manner by which the
Ordinance would be amended does not violate the City's charter.
ISSUE
Is the method by which the City determines whether to allow the operation of
a gaming club a "municipal affair," and therefore within the City's powers notwithstanding the
State Voter Approval Provision to the contrary?
BRIEF ANSWER
Probably. In order to determine whether the Ordinance or the State Voter
Approval Provision controls, a conflict analysis (a "Conflict Analysis") must be undertaken to
determine three issues. First, the subject being governed by the Provisions (the "Subject") must
be determined. Second, whether the Subject involves matters best governed locally (a
"Municipal Affair") or matters best governed statewide (a "Statewide Concern") must be
determined. Finally, based on whether the Subject involves a Municipal Affair or a Statewide
Concern, the extent of the City's authority must be determined. With respect to the third issue,
if the Subject is a Municipal Affair, the City has authority to enact ordinances governing the
Subject, notwithstanding the conflicting State Voter Approval Provision. If the Subject pertains
to a Statewide Concern, the City has authority to enact ordinances governing the Subject unless
the state has (1) occupied the field of the Subject to the exclusion of city regulation or (2)
preempted the Subject such that the state regulation conflicts with the City ordinance. If the
LA01 \6345\23624.13 3 95573.1
state has either occupied or preempted the field with respect to the Subject, the State Voter
Approval Provision controls, notwithstanding any conflicting provision in the City's charter.
With respect to the present facts, the Subject that is governed by the Provisions
probably concerns voter approval requirements for a city election to determine whether to
establish and operate a gaming club (a "City Gaming Club Election"). There are substantial
arguments to support the position that voter approval requirements for a City Gaming Club
Election involve a Municipal Affair. As such, the Ordinance controls, notwithstanding an
apparent conflict with the State Voter Approval Provision. Moreover, it is of no consequence
whether the City enacts an ordinance with a different voter approval requirement than the
majority voter approval requirement provided by the State Voter Approval Provision, or whether
the City chooses to even hold an election. The dispositive issue is whether a Municipal Affair
is involved. When this is the case, the City may choose to regulate in any manner it chooses
in accordance with its charter.
If the City does enact the Ordinance despite the apparent conflict with the State
Voter Approval Provision, there are two methods by which the City may obtain a judicial
determination of the validity of the Ordinance. The City might either seek a writ of mandate
or a declaratory judgment.
DISCUSSION
In order to determine whether the City may enact the Ordinance to allow a
gaming club to operate within its jurisdiction without first obtaining a majority vote of the
electorate, as may be required by the State Voter Approval Provision, this memorandum
examines three issues. First, this memorandum will determine whether there exists an actual
conflict between the State Voter Approval Provision and the Ordinance. Second, if there exists
such a conflict, this memorandum will determine which of the Provisions is controlling. Finally,
if the City does enact the Ordinance, this memorandum will outline the general procedures by
which the City may obtain a judicial determination of the validity of the Ordinance.
1. Actual conflict must exist between the State Voter Approval Provision and the
Ordinance.
As a preliminary matter, a court must, prior to determining if a Municipal
Affair or a Statewide Concern exists, first satisfy itself that the case presents an actual conflict
between a state statute and a charter city measure.'
Under the present facts, there is an apparent conflict between the Provisions.
The State Voter Approval Provision requires all cities that had not permitted gaming clubs prior
' California Federal Savings & Loan Ass'n v. City of Los Angeles, 54 Cal.3d 1 (1991).
LA01 \6345\23624.13 4 95573.1
0
to January 1, 1984 to secure majority voter approval before allowing gaming clubs to operate
within the city. The City, however, contemplates enacting the Ordinance which, pursuant to the
City's charter, would allow a gaming club to operate within the City without any voter approval
having been obtained.
Because there does exist a conflict between the Provisions, it is necessary to
determine whether a Municipal Affair or a Statewide Concern is implicated. This is necessary
because once that is ascertained, it can be determined whether the State Voter Approval
Provision or the Ordinance controls.
2. If there is a conflict between the Provisions. a Conflict Analysis must be undertaken
to determine whether the State Voter Approval Provision or the Ordinance controls
A. Conflict Analysis Rules.
Under a Conflict Analysis, to determine whether a state statute or a charter city
measure will control requires asking and answering the following questions.
(1) What is the Subject that the Provisions are governing?
The first step in undertaking a Conflict Analysis requires determining the
Subject that the Provisions are governing. This may be determined by examining the purpose,
the legislative history, and the actual words of the Provisions.
(2) Is the Subject a Municipal Affair or a Statewide Concern?
Once the Subject has been determined, the next step involves determining
whether the Subject is a Municipal Affair or a Statewide Concern.
Courts, when determining whether a given activity is a Municipal Affair or a
Statewide Concern, generally make an ad hoc inquiry, answering the question in light of the
facts and circumstances surrounding each case.z In those instances where a matter implicates
a Municipal Affair and poses a genuine conflict with state law, it has been held that the question
of whether a Statewide Concern exists is the bedrock inquiry through which the conflict between
the state and local interests is adjusted.' Generally, if the Subject of the statute fails to qualify
as one of Statewide Concern, then the conflicting charter city measure is a Municipal Affair and
beyond the reach of legislative enactment.' If, however, the court is persuaded that the Subject
of the state statute is one of Statewide Concern and that the statute is reasonably related to its
at 16.
3 Id
4 Id.
LA01 \6345\23624.13 5 95573.1
resolution, then the conflicting charter city measure ceases to be a Municipal Affair pro tanto,
and the Legislature may, by state statute, address the statewide dimension by its own tailored
enactments.s
The fact, standing alone, that the Legislature has attempted to deal with a
particular Subject on a statewide basis is not determinative of whether a Statewide Concern or
a Municipal Affair is involved.' The Legislature is empowered neither to determine what
constitutes a Municipal Affair nor to change a Municipal Affair into a matter of Statewide
Concern simply by enacting a comprehensive set of general laws governing the Subject.' The
court must be satisfied that there are good reasons, grounded on statewide interests, to label a
given matter a Statewide Concern.'
Courts, to determine if there are good reasons to label a given matter a
Statewide Concern, look to see whether there is a dimension to the Subject that demonstrably
transcends identifiable municipal interests.' For example, courts determine whether there are
substantial geographic, economic, ecological or other distinctions which indicate a need for local
control, or whether these factors may be adequately recognized and comprehensively dealt with
at the state level.10
In essence, given the inherent ambiguity involved, courts have sought to
allocate the governmental powers under consideration in the most sensible and appropriate
fashion as between local and state legislative bodies."
(3) To what extent does a charter city have authority to govern the
Subject based on its classification as a Municipal Affair or a
Statewide Concern?
S I,; Johnson v. Bradley, 4 Cal.4th 389, 404 (1992).
' Johnson, 4 Ca1.4th at 406.
' Id
B Id
9 California Federal Savings and Loan Ass'n, 54 Cal.3d at 17.
10 Cox Cable San Diego v. City of San Diego, 188 Cal.App.3d 952, 962 (1987).
11 California Federal Savings and Loan Ass'n, 54 Cal.3d at 17.
LA01 \6345\23624.13 6 95573.1
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Upon having determined whether the Subject is a Municipal Affair or a
Statewide Concern, the next step involves determining to what extent a charter city has authority
to govern the Subject.
California Constitution, art. XI, §5 provides a charter city with complete
autonomy to enact ordinances that govern Municipal Affairs so long as it does not conflict with
the city's charter, even if it directly conflicts with a state statute.l2
In addition to its autonomy with respect to Municipal Affairs, a charter city
may also enact ordinances and regulate matters pertaining to a Statewide Concern so long as it
does not conflict with the city's charter. This ability, however, is subject to two limitations.
First, if it was the intent and purpose of the Legislature to occupy the field of
the Subject to the exclusion of municipal regulation, the charter city remains subject to and
controlled by the applicable general state laws. In order to determine whether the Legislature
intended to fully occupy the field with respect to a Subject, courts have examined whether: (1)
the Subject has been so fully and completely governed by general law as to clearly indicate that
it has become exclusively a matter for the state to regulate, (2) the Subject has been partially
governed by general law couched in such terms as to indicate clearly that a paramount state
interest will not tolerate further or additional local action, or (3) the Subject has been partially
governed by general law, and the Subject is of such a nature that the adverse effect of a local
ordinance on the transient citizens of the state outweighs the possible benefit to the
community.13
Second, even if the Legislature did not intend to fully occupy the field of the
Subject to the exclusion of all municipal regulation, if the municipal ordinance or regulation
conflicts with a state law, the charter city remains subject to and controlled by the applicable
state law.''
" Cox Cable San Diego, 188 Cal.App.3d at 960.
California Constitution, art. XI, §5, specifically provides:
It shall be competent in any city charter to provide that the city governed
thereunder may make and enforce all ordinances and regulations in respect
to municipal affairs, subject only to restrictions and limitations provided in
their several charters . . . . (emphasis added).
13 Cox Cable San Diego, 188 Cal.App.3d at 961.
14 IdL
LA01 \6345\23624.13 7 95573.1
Q 0
If the Subject is a Statewide Concern, both of the above limitations apply
regardless of the provisions of the city's charter."
B. Application of the Conflict Analysis rules
(1) What subject are the Provisions governing?
It might be argued that the Subject that is governed by the Provisions pertains
either to gaming or to voter approval requirements for a City Gaming Club Election.
The Subject that is governed by the Gaming Registration Act16 (the "Act")
is gaming. Based on this, it might be determined that the Subject that is governed by the State
Voter Approval Provision, which is a part of the Act, also is gaming.
However, a closer examination of the purpose and legislative history of the
Act, as well as the actual words of the State Voter Approval Provision, reveals that the Subject
that is governed by the State Voter Approval Provision more likely involves establishing the
voter approval requirement for a City Gaming Club Election rather than gaming.
The Act was sponsored by the Attorney General, who described some card
clubs as a "magnet for criminal elements," with the problems of some clubs being beyond the
jurisdiction of individual cities.17 The problems of Statewide Concern that the Attorney
General believed required state regulation were the criminal activity and the hidden ownership
that was common to commercial cardrooms.l$ To address these problems, the Act, although
it provided for certain concurrent regulatory controls, mandated that local jurisdictions could not
operate a gaming club until they first met with state requisites for registration.19 Specifically:
It [was] the intent of the Legislature, in enacting this chapter, to have
concurrent jurisdiction with local governments over gaming establishments
within the State of California and to provide uniform, minimum regulation
15
16 California Business and Professions Code §§ 19800 et seq.
1' Fendrich v. Van de Kamp, 182 Cal.App.3d 246, 253 (1986) (citing to Assem.Com. on
Governmental Organization, Analysis of Assem. Bill Nr. 1573 (1983-1984 Reg.Sess.) (emphasis
added).
18 Id. at 254.
19 IL (citing to undated memo in Sen.Com. on Governmental Organization files, furnished
by the Legislative Intent Service).
LA01 \6345\23624.13 8 95573.1
4
of the operation of those establishments through registration by the Attorney
General of those who own or manage gaming clubs.20
Although the purpose of the Act was to address the issues of Statewide Concern
related to gaming discussed above, the State Voter Approval Provision does not further this
purpose. The State Voter Approval Provision in no way regulates those aspects of gaming
pertaining to the actual operation of a gaming club nor does the State Voter Approval Provision
regulate the people who own or manage gaming clubs. Rather, the State Voter Approval
Provision provides for voter approval requirements for a City Gaming Club Election; a subject
that was not stated to be a concern of the Attorney General when he sponsored the Act.
Because the State Voter Approval Provision does not in fact regulate the actual
operation of gaming clubs or the registering of its owners and managers, it may be argued that
the State Voter Approval Provision does not even regulate gaming, despite the fact that the State
Voter Approval Provision is a part of the Act. The mere fact that the State Voter Approval
Provision is a part of the Act, which as a whole regulates gaming, is not determinative.21
In fact, upon an examination of the actual words of the State Voter Approval
Provision, it is more plausible that the State Voter Approval Provision merely governs what is
on its face; the voter approval requirement necessary when conducting a City Gaming Club
Election.
With respect to the Ordinance, it governs the same Subject as does the State
Voter Approval Provision. Therefore, if it is determined, upon an examination of the purpose,
legislative history and the actual words concerning the Act and the State Voter Approval
Provision, that the State Voter Approval Provision governs the voter approval requirement
necessary when conducting a City Gaming Club Election, it may also be determined that this is
the Subject that the Ordinance governs as well.
(2) Is the Subject a Municipal Affair or a Statewide Concern9
a. If the Subject involves voter approval reauirements for_a
City Gaming Club Election as op2gsed to gaming. then it is
a Municipal Affair.
Upon an examination of the factors provided in Section 2.A.(2), supra, it
appears that the State Voter Approval Provision governs a Municipal Affair and not a Statewide
Concern if the Subject of the State Voter Approval Provision involves the voter approval
requirement for a City Gaming Club Election.
2° California Business and Professions Code §19801 (emphasis added).
21 Johnson, 4 Cal.4th 389.
LA01 \6345\23624.13 9 95573.1
The California Constitution and case law indicate that city elections are to be
governed by charter provisions. In Johnson V. Bradley, the court engaged in a discussion of
California Constitution, art. XI, §5, stating that while §5(a) articulates the general principles of
self-governance, §5(b) sets out a nonexclusive list of "core" categories that are, by definition,
"municipal affairs."" One of the core categories defined to be a per se Municipal Affair, was
regulation over the conduct of city elections.' A number of courts have also held to this
effect.2' Based on these authorities, it is reasonable to conclude that the Subject the State Voter
Approval Provision attempts to regulate is a Municipal Affair.
In addition to determining this issue on the narrow grounds that city elections
are to be governed by city charter provisions, the determination that the Subject is a Municipal
Affair also appears to be a reasonable allocation of governmental powers. There is little doubt
that there are aspects to gaming that pertain to a Statewide Concern. Thus, conceptually, it
appears reasonable that the determination of whether or not gaming clubs should be allowed in
the state at all involves a matter of Statewide Concern. Further, it also appears reasonable that
the determination as to the manner in which these gaming clubs should be operated, based on
the concerns driving the passage of the Act, also implicates a matter of Statewide Concern.
There are, however, a number of issues with respect to gaming where it is
reasonable to believe that a Municipal Affair is being implicated. For example, issues such as
the size, location, parking requirements, hours of operation and the number of gaming clubs
allowed in a city are all issues that are best handled at the local level. These all involve matters
that are of a Municipal Affair in nature. In light of this, it appears equally reasonable that the
ultimate decision whether or not to even allow a gaming club to operate within the jurisdiction
22 Id.
' Id.
California Constitution §5(b)(3) should not be interpreted to only apply in the limited area of
elections for city officials. The procedures and authority to regulate elections for city officials
is specifically provided for in California Constitution §5(b)(4).
For an example of an election not pertaining to voting for city officials, -,s=, Coffineau v. Fong
E_U, 68 Cal.App.3d 138 (1977) (in the case of a charter city, whether the vote necessary to effect
change of name of city shall be a majority vote or a two-thirds favorable vote is a matter
properly governed by provisions of a city charter; such matter is in the hands of residents of
home rule city).
' fCo fineau, 68 Cal.App.3d 154; Rees v. Layton, 6 Cal.App.3d 815, 821 (1970); Socialist
EaM v. UhI, 155 Cal. 776, 788 (1909); City of Redwood City v. Moore, 231 Cal.App.2d 563
(1965); Muehleisen v. Forward, 4 Cal.2d 17 (1935); Scheafer v. Herman, 172 Cal. 338 (1916);
People v. ex rel. Martin v. Worswick, 142 Cal. 71 (1904); Lawing v. Fault, 227 Cal.App.2d
23 (1964).
LA01 \6345\23624.13 10 95573.1
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of the city, including the voter approval requirement in making such a decision, also implicates
a matter best categorized as a Municipal Affair."
b. If the Subiect involves 2amina, as opposed to voter apRr
ree4ulrements for a City amino Club Election then it is
both a Statewide Concern and a Municipal Affair
Upon an examination of the factors provided in Section 2.A.(2), supra, the
State Voter Approval Provision, if it actually regulates gaming, as opposed to voter approval
requirements for a City Gaming Club Election, governs issues pertaining to both a Statewide
Concern and a Municipal Affair.
It has been held that the regulation of gambling implicates both municipal and
statewide concerns.2' This appears to be a reasonable allocation of governmental powers. As
discussed in Section 2.B.(2) a., supra, there are certain issues, such as the decision to allow
gaming within the state and the manner by which gaming clubs should be operated, that are best
handled at the state level, while there are also certain issues, such as determining the size and
location of a gaming club within a city, that are best handled at the local level.
(3) What is the extent of the City's authority with respect to the Subject
that is governed by the Provisions?
a. If the Subject that is governed by the Provisions involy s
voter approval requirements for a City Gaming Club
Election as opposed to gaming the Ordinance controls
If the Subject that is governed by the Provisions involves establishing voter
approval requirements for a City Gaming Club Election, a Municipal Affair is involved. As
such, if the Ordinance conflicts with the State Voter Approval Provision, the Ordinance should
control based on California Constitution, art. XI, §5, if the Ordinance is consistent with the
City's charter.
An argument may be made, however, that even if the Provisions concern a
Municipal Affair, thereby rendering the Ordinance the controlling provision, the Ordinance must
at least allow for some election to take place. It may be argued that the decision to not hold an
election at all goes beyond the authority of the City. This argument is without merit.
zs This appears especially true based on cities having the authority to prohibit forms of
gaming not prohibited by state law because such a decision involves issues of local concern. As
such, it would appear equally reasonable to conclude that the decision to allow gaming not
prohibited by state law also involves issues of local concern.
z6 In re Portnoy, 21 Cal.2d 237 (1942).
LA01 \6345\23624.13 11 95573.1
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Once a matter is found to involve a Municipal Affair, the decision whether to
even have an election, regardless of what a state statute requires, has been found to be up to the
charter city.' In City of Santa Monica v. Grubb, Santa Monica sought to issue revenue bonds
without holding an election although an election was required by state law. The court held that
Santa Monica, based on its status as a charter city, had plenary power with respect to its
Municipal Affairs.28 As such, the court held that although state law required an election prior
to an issuance of revenue bonds, since the issuance of revenue bonds was a Municipal Affair,
Santa Monica could issue the bonds without holding an election if it did not violate the city's
charter.
Based on the holding in City of Santa Monica, the fact that no election would
be held prior to the City allowing, by Ordinance, a gaming club to operate in its jurisdiction is
of no legal consequence, since it concerns a Municipal Affair, of which the City has plenary
authority and because it does not violate the City's charter.
b. If the Subject involves gaming. as opposed to voter approval
requirements for a City Gaming Club Election. then the State
Voter Approval Provision controls.
I
As discussed above, the regulation of gaming touches upon issues pertaining
to both a Statewide Concern and a Municipal Affair. As such, if the Subject involves gaming,
as opposed to voter approval requirements for a City Gaming Club Election, the City can enact
the Ordinance only if the state did not occupy the field of gaming and if the state did not enact
a statute that conflicts with the Ordinance.
i. The state has not fully occupied the field of gaming,,
There is no apparent indication by state legislation that the state seeks to
occupy the entire field of gaming. Although the California Penal Code sections governing this
subject are extensive in their scope, they are far from being all-inclusive. These code sections
do not prohibit all forms of gaming, but rather only twelve specific games.' Since the general
laws do not make illegal all forms of gambling, or even all forms of gaming, they cannot be said
to occupy either field to the exclusion of the exercise of local police power.30
77 Cry of Santa Monica v. Grubb, 245 Cal.App.2d 718 (1966); City of Santa Clara v. Von
Raesfeld, 3 Ca1.3d 239 (1970).
as City of Santa Monica, 245 Cal.App.2d at 724 (quoting Cry of Redondo Beach v.
Taxpayers. Proj& y Owners etc. City of Redondo Beach, 54 Cal.2d 126, 137 (1960)).
California Penal Code §330.
30 In re Hubbard, 396 P.2d 809, 814 (1964).
LA01 \6345\23624.13 12 95573.1
Provisions of the Act also indicate the state did not intend to occupy the entire
field of gaming. California Business and Professions Code §19801 provides that the
Legislature's intent in enacting the Act was to provide concurrent jurisdiction with local
governments over gaming establishments within the state of California. Moreover, it was the
Legislature's intent not to preempt the authority of any city, county, and city and county from
prohibiting gaming, from imposing any valid local controls or conditions upon gaming, or to
enforce any applicable state and local laws.31 Finally, the Act did not prohibit the enactment,
amendment, or enforcement of any ordinance by any county, city, or city and county relating
to gaming clubs which was not inconsistent with the Act.12
It has also been held that, with respect to gambling, there is no indication that
further local action could not be tolerated.33 Furthermore, it has been held that the regulation
of gambling and gaming is not a matter in which transient citizens of the state are particularly
concerned, as they are or might be in the regulation of traffic or the registration of criminals.34
In light of the analysis above, because the state has not occupied the entire field
of gaming, the City may enact ordinances pertaining to gaming as long as the City's ordinances
do not conflict with the state's regulations.
I
ii. There is a conflict between the State Voter
Approval Provision and the Ordinance
Given that the regulation of gaming implicates both municipal and statewide
concerns, it has been held that:
Mhe control of gaming activities is a matter concerning which local
. governments possess power to enact and enforce local regulations not in
conflict with general laws,for the purpose of supplementing those laws . .
31 1
32 California Business and Professions Code §19824.
33 In re Hubbard, 396 P.2d at 815.
34
35 In re Portnoy, 21 Cal.2d at 239 (emphasis added).
LA01 \6345\23624.13 13 95573.1
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Although gaming, under the authority of In re Portnoy, may be regulated at
both the state and charter city level, the City cannot enact the Ordinance, if in fact, it regulates
gaming, because it is in direct conflict with the State Voter Approval Provision.36
C. Probable outcome under the Conflict Analysis
If the Subject that is governed by the Provisions pertains to the regulation of
gaming, the Subject involves a Statewide Concern. If this is the case, then in the event there
is a conflict between the Ordinance and the State Voter Approval Provision, the State Voter
Approval Provision will control. As a result, the City would not be able to allow a gaming club
to operate without first obtaining a majority vote approval.
However, based upon the analysis in Section 2.B.(1), supra, it is more
probable that the Subject that is governed by the Provisions does not pertain to the regulation
of gaming, but rather to voter approval requirements for a City Gaming Club Election. Voter
approval requirements for a city election involve a Municipal Affair. As such, where there is
a conflict between the Ordinance and the State Voter Approval Provision, the Ordinance should
control. As a result, it is reasonable to conclude that the City can decide to allow a gaming club
to operate without first obtaining majority voter approval if such action does not violate the
City's charter.
3. Procedures by which the City may obtain a judicial determination of the validity of the
Ordinance.
There are two methods by which the City may obtain a judicial determination
of the validity of the Ordinance. The City could either choose to file a petition for writ of
mandate or seek declaratory relief.37 The analysis below provides a brief discussion of these
two methods.
A. Petition for Writ of Mandate
Once the City approves the Ordinance, the city clerk may refuse to publish it
if the City Clerk believes that the City did not have legal authority to approve the Ordinance,
5=, supra, Section 1.
A third method involving validating proceedings under California Code of Civil
Procedure §860 cannot be applied to validate the Ordinance. Generally, §860 may only be
applied to validate financial transactions of a public agency, such as bonds, assessments and
contracts involving financial obligations. See, Cry of Ontario v. Suyerior Court of San
Bernardino County, 2 Cal.3d 335 (1970).
LA01 \6345\23624.13 14 95573.1
In such an event, the City could file a writ of mandate to compel the city clerk to publish the
Ordinance in accordance with the city clerk's duty under the City's charter.38
Generally, in order for a court to issue the writ of mandate, the City would
have to show: (1) the city clerk is a person, (2) the city clerk failed to perform a clear and
present duty while having had the legal authority and ability to do so, (3) the duty involved a
ministerial action, (4) the City has a clear, present right to, and a beneficial interest in the
performance of the city clerk's duty, and (5) the City either has no other remedy at law, or the
other remedy at law is inadequate.39
The first, fourth and fifth elements could easily be established by the City; the
city clerk is a person, the City would have a clear and present right to the performance of the
city clerk's duty by virtue of the fact that the city clerk's duty is enumerated in the City's charter
and the Ordinance will not become effective without said performance, and the City has no other
remedy at law that would result in the Ordinance taking effect.
As to the third element, it can be established that the city clerk's duty involves
a ministerial action. If a statute requires an official to do a prescribed act at a prescribed time,
it follows that the act is ministerial.40 In this case, under the City's charter, the city clerk is
required to publish ordinances at a specified time and in a specified manner."
It is with respect to the determination of the second element that the City will
obtain a judicial determination of the validity of the Ordinance. The city clerk, by refusing to
publish the Ordinance, could argue that the City did not have the authority to adopt the
" Charter of the City of San Bernardino, art. III, §33 (June 1992).
Procedures for filing a petition for writ of mandate are governed by California Code of Civil
Procedure §§1063-1108. The format of the petition must comply with the California Rules of
Court and any local rules of the applicable superior court.
39 California Code of Civil Procedure §§1085-86.
40 5=, Glendale City Employees' Ass'n v City of Glendale, 15 Cal.3d 328, 344 (1975).
at Charter of the City of San Bernardino, art. III, §33 provides:
After the passage of each ordinance, and at all times thereafter, the City
Clerk shall maintain on file and open to public inspection a certified copy of
the full text of the ordinance. Within fifteen (15) days after the passage of
each ordinance, it shall be published by the City Clerk . . . Except as
otherwise provided in this Charter, an ordinance shall not take effect or be
valid unless it is published in substantially the manner and at the time
required herein.
LA01 \6345\23624.13 15 95573.1
Ordinance because of the conflicting State Voter Approval Provision and, therefore, publishing
the Ordinance would be beyond the city clerk's legal authority. The court, in order to issue the
writ of mandate on behalf of the City, would therefore have to determine the validity of the
Ordinance.
B. Declaratory Judgment
Once the City enacts the Ordinance, a person interested under a written
instrument, including a statute or ordinance, may bring an action in superior court to determine
the validity of the Ordinance.42 In such an event, the City could seek a declaratory judgment
that the Ordinance is valid.
To be a "person interested," one must have a direct, and not merely
consequential, interest in the litigation 43 In the instant case, persons interested under the
Ordinance would include the parties involved in the establishment of the gaming club, the voters
of the City and possibly the residents of the City, insofar as their health and welfare might be
affected by establishing the gaming club in the City without their consent. In a complaint filed
by such persons, there must be alleged facts which state an actual controversy, as distinguished
from a difference or dispute of hypothetical or abstract character." Consequently, the City
probably cannot ask for a declaratory judgment unless the Ordinance is challenged by a person
whose rights or obligations are affected by the Ordinance.
If the Ordinance is challenged by a proper interested party, the City will obtain
a judicial determination of the validity of the Ordinance.
CONCLUSION
There is an apparent conflict between the Ordinance and the State Voter
Approval Provision. Based upon an examination of the purpose, legislative history, and actual
words of the Provisions, it is reasonable to conclude that the Subject that is governed by the
Provisions involves voter approval requirements for a City Gaming Club Election. According
to the California Constitution and case law, voter approval requirements for a city election
42 Se , California Code of Civil Procedure §1060; Lane v. City of Redondo Beach, 49 Cal.
App. 3d 251 (1975); Walker v. Los Angeles County, 55 C.2d 626 (1961).
"s Associated Boat Industries of Northern California v Marshall, 104 Cal.App.2d 21
(1951), construing "interested person" as used in California Government Code §11440, which
section was held indistinguishable from California Code of Civil Procedure §1060 in Residen
of Beverly Glenn Inc v City of Los Angeles, 34 Cal.App.3d 117,125 (1973).
44 5!zg,, Hagan v Fairfield, 238 Cal.App.2d 197 (1965).
LA01 \6345\23624.13 16 95573.1
a
involve a Municipal Affair. When a Municipal Affair is involved and when there is a conflicting
charter city ordinance and state regulation, the valid charter city ordinance controls. As a result,
it is reasonable to conclude that the City has the authority to regulate the voter approval
requirements for a City Gaming Club Election in any manner it chooses consistent with the
City's charter. This authority includes the authority to approve the operation of a gaming club
within the City's jurisdiction without any vote of the electorate. Further, the City may obtain
a judicial determination of the validity of the Ordinance by seeking a petition for writ of mandate
or a declaratory judgment.
LA01 \6345\23624.13 17 95573.1
1
A
1 RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO CALLING A SPECIAL ELECTION AND SUBMITTING TO THE
ELECTORS A MEASURE TO ALLOW CARD CLUBS WITHIN THE CITY OF SAN
3 BERNARDINO
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
5 OF SAN BERNARDINO AS FOLLOWS:
6
7 SECTION 1. Special Mu icipal Election Called.
8 A special municipal election is called and will be held in the City of San Bernardino on
9 Tuesday, , 1995, for the purpose of submitting to the qualified electors of
10 the City, for their approval or disapproval, the measure set forth herein.
11
SECTION 2. Measure.
12
13 The measure to be voted on at the special municipal election as it is to appear on the
ballot shall be as follows:
14
15
Measure Shall card clubs in which Yes ❑
16 any games permitted by law, such as draw
poker, low-ball poker and panguingue (pan)
17 are played be allowed in the City of San No ❑
Bernardino?
18
19 The measure shall be designated on the ballot by a letter printed on the left margin of
20 the square containing the description of the measure as provided in the Elections Code of the
21 State of California.
22
23 SECTION 3. Notice of Election.
24 The City Clerk is hereby directed to publish a notice of the special municipal election
25 which shall contain the following:
26 A. The date of the election;
27 B. That the last day for receipt of primary arguments for or against the measure has
28 been established as p.m. on , in the City Clerk's Office, Second Floor,
DAB/tbm [Cardclub.res] 1 August 16, 1995
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO SUBMITTING TO THE ELECTORS A PROPOSED MEASURE WHICH
WOULD ALLOW CARD CLUBS WITHIN THE CITY
1
2 City Hall, 300 North "D" Street, San Bernardino, California;
3 C. That the last day for receipt of rebuttal arguments is p.m. on
4 , in the City Clerk's Office at the above location.
5 The City Clerk is directed to accept arguments and arrange for sample ballots, in
6 accordance with Section 306, and Section 9600, et seq. of the Elections Code.
7 This notice may be combined with a notice of any other special municipal election to
8 be held on the same date.
9
10 SECTION 5. Conduct of Election.
11 The special municipal election called by this resolution shall be held in such precincts
12 and at such polling places as shall be determined by the City Clerk pursuant to law. The City
13 Clerk shall take all steps necessary for the holding of the electiion.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DAB/tbm [Cardclub.res] 2 August 16, 1995
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO SUBMITTING TO THE ELECTORS A PROPOSED MEASURE WHICH
WOULD ALLOW CARD CLUBS WITHIN THE CITY
1
2 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
3 and Common Council of the City of San Bernardino at a meeting thereof, held on the
4 day of , 1995, by the following vote, to-wit:
5 Council Members: AYES NAYS ABSTAIN ABSENT
6 NEGRETE
7 CURLIN
8 HERNANDEZ
9 OBERHELMAN
10 DEVLIN
11 POPE-LUDLAM
12 MILLER
13
14
City Clerk
15
16 The foregoing Resolution is hereby approved this day of , 1995.
17
Tom Minor, Mayor
18 City of San Bernardino
Approved as to form
19 and legal content:
20 JAMES F. PENMAN,
City Attorney
21
22 By
23
24
25
26
27
28
DAB/tbm [Cardclub.res] 3
August 16, 1995
CITY OF SAN BERNp4DINO - REQUEST FOR Cr"UNCIL ACTION
1: Councilman Eddie V. Negrete, First Ward Subject: Special Election - Gaming
Council Office
3: August 16, 1995
opsis of Previous Council Action:
:)mmended Motion:
To discuss and take possible action to hold a Special Election asking voters if they will support Gaming
he City of San Bernardino.
Signature
itact Person: Councilman Eddie V. Negrete Phone: 5268
porting Data Attached: no Ward:
LADING REQUIREMENTS: Amount:
Source: (Acct.No.)
(Acct. Description)
Finance:
:ncii Notes:
,J
9 j- , j AGENDA ITEM NO.
G���� �//
RESOLUTION NO.
1
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO CALLING A SPECIAL ELECTION AND SUBMITTING TO THE
ELECTORS A MEASURE TO ALLOW CARD CLUBS WITHIN THE CITY OF SAN
3 BERNARDINO
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
5 OF SAN BERNARDINO AS FOLLOWS:
6
SECTION 1. Special Municipal Election Called.
7
A special municipal election is called and will be held in the City of San Bernardino on
8
Tuesday, , 1995, for the purpose of submitting to the qualified electors of
9
the City, for their approval or disapproval, the measure set forth herein.
10
11
SECTION 2. Measure.
12
The measure to be voted on at the special municipal election as it is to appear on the
13
ballot shall be as follows:
14
15
Measure . Shall card clubs in which Yes [ ]
16 any games permitted by law, such as draw
poker, low-ball poker and pangumgue (pan)
17 are played be allowed in the City of San No [ ]
Bernardino?
18
19 The measure shall be designated on the ballot by a letter printed on the left margin of
20 the square containing the description of the measure as provided in the Elections Code of the
21 State of California.
22
23 SECTION 3. Notice of Election.
24 The City Clerk is hereby directed to publish a notice of the special municipal election
2S which shall contain the following:
26 A. The date of the election;
27 B. That the last day for receipt of primary arguments for or against the measure has
28 been established as p.m. on , in the City Clerk's Office, Second Floor,
DAB/tbm [Cardclub.res] 1 August 16, 1995
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO SUBMITTING TO THE ELECTORS A PROPOSED MEASURE WHICH
WOULD ALLOW CARD CLUBS WITHIN THE CITY
1
2 City Hall, 300 North "D" Street, San Bernardino, California;
3 C. That the last day for receipt of rebuttal arguments is p.m. on
4 , in the City Clerk's Office at the above location.
5 The City Clerk is directed to accept arguments and arrange for sample ballots, in
6 accordance with Section 5010, et seq., and Section 5350 of the Elections Code.
7 This notice may be combined with a notice of any other special municipal election to
8 be held on the same date.
9
10 SECTION 5. Conduct of Election.
11 The special municipal election called by this resolution shall be held in such precincts
12 and at such polling places as shall be determined by the City Clerk pursuant to law. The City
13 Clerk shall take all steps necessary for the holding of the electiion.
14
15
16
17
18
19
20
22
23
24
25
26
27
28
DAB/tbm [Cardclub.res] 2 August 16, 1995
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO SUBMITTING TO THE ELECTORS A PROPOSED MEASURE WHICH
WOULD ALLOW CARD CLUBS WITHIN THE CITY
1
2 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
3 and Common Council of the City of San Bernardino at a meeting thereof, held on the
4 day of , 1995, by the following vote, to-wit:
5 Council embers: AYES NAYS ABSTAIN ABSENT
6 NEGRETE
7 CURLIN
8 HERNANDEZ
9 OBERHELMAN
10 DEVLIN
11 POPE-LUDLAM
12 MILLER
13
14 City Clerk
15
16 The foregoing Resolution is hereby approved this day of 1995.
17
Tom Minor, Mayor
18 City of San Bernardino
Approved as to form
19 and legal content:
20 JAMES F. PENMAN,
City Attorney
21
22 By'
23
24
25
26
27
28
DAB/tbm [Cardclub.res] 3 August 16, 1995
i
FROM ' ECON DEV AGENCY `�._ FAX NC • : 599 384 5215 �j°—I� —'35 ���a0� F .91
EXCLUSIVE NEGOTIAT.rNiG AGREEMENT BETWEEN TW
ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
ROUNDLNG 'THIRD, LLC
This Exclusive Negotiating Agreement (the "Agreemnt") is entered into by and
hetween the Redevelopment Agency of the City of Saa Bernardino, a public body, corporate and
politic (the *Agency"), and Rounding Third, L.L.C, a Califonua Limited Liability Company
("RT"), and for the convenience of the parties snail be dated as of May 15, 195 (the 'Effective
Date").
Section t Recitals.
1.1 The Agency desires to have certain property within the Central City South
Redevelopment Project Area of the Agency established pursuant to Ordinance No.. 3572 and as
amended by Ordinance. No. MC-564 (the "'Project Area"), developed in fi:rtherance of the
Agency's redevelopment objectives_ Tbe property eonsist<e of approximately forty-three (43') acres
as shown on Exhibit 1.1.
1.2 The Agency desires to cause approximately thirteen (13) acres of the
property to be developed as a sports, recreation, entertainment complex including, and centered
about, a stadium suitable as a home facility for a minor league professional baseball team, with
the balance to be devoted to coniinercial activity focused on a gaming or other type of casino
facility. In this Agreement the 13 acre site is referred to as the "Stadium Site", the 30 acre site
is referred to as the "Entertainment Site", and the entire 43 acre sports/gaming proposed
development is referred to as the "Complex".
1.3 RT has assembled a team.of consultants experienced in the development and
financing of sports, rxreation and related stadia and facilities. RT's team also has experience and
expertise in the financing and development of gaming facilities which operate under and in
accordance with the provisions of the laws of the State of California and the municipalities in
which such gaming facilities are located..
1.4 Recognizing that constructing a City of San Bernardino ("City") owned
baseball stadium and financing and developing a world class Complex requires sources of revenue
other than those usually available to the Agency, RT proposes to prepare and present to the
Agency a plan which provides for the construction of the Stadium Site and development of the
entire Complex, all at no cost to the Agency. lax addition, this plan will provide: not only the
initial financing but also an ultimate reveuli,: .neam to support the entire Complex, as well as
produce additional .revenues co the Agency ,nJ the City.
t Post it, r i�71 Ca
fr_rns
Q0.
'�i
FFiDt1 : ECON GEV pGENCV FA-.: NO . : 999 384 5215 C �l 09-0e-95 39:99 P.02
:.,
1.5 The purposes and goals of this Agreement, therefore, are to enable the
parties to work together to develop the Complex and to provide RT with the time necessary to
assemble this package in a format suitable for incorporation into a Disposition and Development
Agreement ("DDA").
1.6 The Agency's power and authority to acquire and redevelop pioperty
derives from the Community Redevelopment Law (Health& Safety Code Sections 33000, cl WQ)
and the Agency must comply with all procedural requirements of the Community Redevelopment
Law in carrying out its redevelopment activities_
Se ction 4• Exclusive Nu,jtiation.
2.1 For a period of one hundred eighty (180) days from the Effective Date, the
Agency and RT hereby agree to negotiate in good faith for the purpose of entering into a DDA
covering the entire Complex. During this period, the Agency agrees that it will not negotiate with
any other person or entity concerning any aspect of the Complex. The term of this Agreement
will end on the first to occur of:
(i) execution of a definitive DDA.; or
(ii) termination of the 180 day exclusive negotiation period; or
(iii) mutual written consent to terminate.
During the negotiations tl)e Agency further agrees to identify a desired
configuration of the CompleX, including the total site proposed for the gawing/casino facility and
to work with RT's team in the preparation of preliminary site studies and architectural and
engineering work.
2.2 During the term of this Agreement, each party shall bear its own, casts.
Section 3. Rm"rid Conditions—of the Prot=j. D_isposition and
v
3.1 During the excltisivc tegotiation period, RT will prepare and present to the
AgcnGy a plan under which RT will:
3.1.1. Establish a development entity, the ownership, directors, and senior
management of which are all persons acceptable to the Agency.
3.1.2 Prepare anal present to the Agency a DDA pursuant to which RT will make
a payment to the Agency upon execution of the DDA of an.amount presently
estimated to be$15,000,040 for certain rights as may be grante=d to RT for the
development of the Entertainment Site and the construction of the
gmnringlcasino facility (such fee in the aznaunt as may be finally agreed upon
-2-
FROM :• ECON DEV AGENCv FAX NO 09 384 5215 Q O'e-85-95 08:10 P.03
by the parties in the DDA shall be herein referred to as the "Development
Fee"). From the proceeds of the Development Fee,the Agency shall remit
to RT a Transaction Fee equal to not more than $1,000,000 based upon the
total x-nount of the Development Fee being equal to $15,000,000, or such
lesser amount of the Transaction Fee reduced proportionately if and to the
extent the Development Fee may be a lesser amount and agreed to by the
Agency in the DDA_ if at any time RT is able to obtain a Development Fee
for pat -meat to the Agency, whether in a single transaction or in a series of
transactions,in an aggregate amount greater than the anticipated$15;040,000
Development Fee in cash or in other valuable consideration, such excess
amounts as may become available from time to time shall he that of the
Agency and not an asset, cash or other valuable consideration of RT;
provided, however, the Agency shall within ten(10) days of receipt of any
sucl?aniount in excess of the$15,000,000.figure,remit twenty percent(20%)
of such excess amount to RT in addition to the Transaction Fee as set forth
above.
RT or its assignee or successor in interest shall remit funds to the Agency if
and to the extent deem�-d necessary by RT for the acquisition of the
Pnter<airunent Site, either in whole or in part and from time to time as
deemed appropriate by RT, in such amounts as may be timessary io acquire
such sites and to pay all costs reasonably required to be paid as a part of such
acquisition by the Agency and disposition from the Agency to RT. As an
alternative thereto,RT may elect to purchase, lease or otherwise acquire an
interest in the Entertainment Site, or any portion tkiereof, without any
involvement of the Agency in any manner whatsoever assistinz in such
acquisitions.
3.1.3 Agree; that during the time set forth in the RDA's Schedule of
I'erforrnance, RT will cause construction of the ganiing!casino facility, with
parking and related structures, to be cornmeaced within ten (10) years after
the execution of the DDA.
3.1 .4 The gaming/casino development acid operation will be subject to at least the
following minimum conditions:
(i) The operation will be as pertllitted under the laws of the State of
California, as from time to time amended.
(ii) The ownership, directors, ofticcrs and senior management of the
entity which actually operates the gaming/casino facility will all be
-3-
FROM ECON DEV FGENCY FaX NO . : ?Oa 394 52:5 L107) 09-06-95 Oa:ra P .O4
subject to approval of appropriate regulatory entities of the State of
California_
(iii) The gaminglcasino facility shall be developed and built in
accordance with the City's General P1ann and its then current
Development Code, pursuant to a tract Temp as may be approved by
the City's Planning Commission.
3.1.5 The entity which operates the gaminglcasino facility wi11 do so under a
franchise agreement with the Agency and the City pursuant to which an
annual franchise fee consistent with franchise fees paid in Southern
California for such facilities will be paid to the City after allowing for:
(i) cost recovery of the baseball stadmm construction costs; (ii) any fees
imposed by any current or future regulatory entity of the State of
California; and (iii) any land acquisition and carry costs associated with the
gaming!casino facility whether in the form of a ground lease, note or cash
purchase amount. For example, it is contemplated that the annual franchise
fee .luring the not to exceed ten (10) year cost recovery period will be
equivalent to six percent (6%) of gross revenues, and thereafter will be
equivalent to 13.2%a of gross revenues.
3.2 The Agency understands and agrees that the DDA will provide that, at any
time during its term:
3.2.1 The Agency will sell the Entertainment Site to RT on the terms and for the
pur�:hase price outlined in Section 3.1.2 above. lmluded in the assets to be
conveyed on sale of the Entertainment Site will be an exclusive franchise
granting to RT or its nominee ganging/casino development and operation
rights consistent with the City's Cneral Plan.
3.2.2 The Agency and the City will grant to RT's nominee or assignee an
exclusive franchise to conduct gaining/casino operations as authori=d by
Statc law, in the following areas:
(i) the Entertainment Sitar; and
(ii) anywhere within the City's redevelopment proj_ct area boundaries for
the term of the DDA.
3.2.3 In addition, the Agency and the City will include ;vid in the exclusive
gaming/casino franchise of RT or its designee, a provision designating it
as the exclusive franchise of such business within the City litni.ts for each
200,000 residents therein.
-4-
FROM: ECON DEV AGEMI."? FRY NO . : 969 X34 5215 0 09-06-95 63:11 P.05
3.2.4 The Agency will make available to RT or its nominee the right to purchase,
at fair market value on. the date of purchase as value is determined by
independent appraisal, up to a total of an additional fifty (50') commercially
zoned acres located within the Project Area boundaries.
3.3 Nothing contained in this Agreement shall be construed to require either
party to eater into the DDA or to consider only those items, terms and conditions as addressed
herein. The DDA, if approved, may contain such modifications to this Agreement or such other
terms and conditions as the parties may approve. Neither parry represents or warrants that a DDA
will t-c entered into by and between the parties solely by the approval and execution of this
Agreement.
Section 4• Electio
As part of this Agreement, the Agency agrees to assist RT in requesting the City
to take all actions necessary to call and held, at RT's expense., a special election designed to
authorize such of the activities discussed in t1Ls Agreement which requires an election if mrutually
deemed to be advisable that such special election be held prior to the termination of this
Agreement.
sectio-nl. San Manuel—Ban Mission_l. i3 iE_t Fit�•
The Parties agree that prior to the approval and execution of the DDA the San
Manuel Band of Mission indiahs ("Stn Manuel") will have a right of first refusal, for a thirty-day
period to commence not less than cizty (et]) days prior to any scheduled consideration and
approval of the DDA by the Agency, during which San Manuel. will have the exclusive right, on
the terms and subject to the conditions set forth in the DDA, to becc�rne the operator of the
gaming/casino operation. to be located on the Entertainment Site and to become the sole
redeveloper or to become a joint venture redeveloper with RT pursuant to any such DDA. Such
DDA if approved and executed with San Manuel as a party thereto will contain at least the
following ternis requiring that San Manuel will:
(i) Reimburse the Agency for ibe Agency's otrt-of-Lock=et costs arising out Of
or connected with this Agreement;
(ii) Pay RT's Transaction Fee and reimburse RT for all of its out-of-pocket
costs arising out of OF connected with this Agreement;
(iii) Acknowledge and agree that RT, or its designee, rray be the fee owner of
the Entertainmcnt Site and will be authorized to enter into a ground lease
or other transfer or disposition of title to or lwssession of the underlying
land for the gaming/casino facility;
-5-
FROM: ' ECON DEV AGENCY �.,�� Fa}S NO 09 384 5215 09-06-?5 0a : 12 P.06
(iv) Acknowledge that RT shall have the exclusive right to purchase the fifty
(50) commercially zoned acres referenced in Section 3.2.4 above; and
(v) Commence to phase out any casino which it then operates in the County of
San Bernardino, nor later than the opening date of the first phase of any
gaming/casino facility to be located on the !Entertainment Site and to case
all operations of any such casino within twelve (12) months thereafter.
Section 7. � Um t Sale 3oir><Venture
j By RT.
This Agreement, any of the items granted to RT under this Agreement, including
the position of purchaser, owner, landlord, tenant, or developer of the Entertainment Site, the fifty
(50) conunercially zoned acres, and/or the right to own, operate or lease the gaming/casino
facility may be sold, or assigned, or transferred by a joint venture, or sinularly structured by RT,
provided that the Agency gives its prior written approval_ Understanding that all parties need
flexibility to accomplish the goals established by this Agreement, the Agency agrees that it will
grant any reasonable request for such approval. The DDA will contain a provision similar to this
Section 7.
r '�$• I�'liscell3[teLUs.
Any amendment to this Agreement gust be in writing and signed by both parties.
Where the consent of either party to this Agreement is required, that party agrees to act
reasonnbly. This is an agreement giving RT exclusive negotiation rights during its term, and it
does not create a partnership or any other eontractw3l relatic►nship between the parties. Each party
understands and agrees that it will bear its own cost` in taking the actions, prepari.rtg the materials,
and conducting the negotiations contertYplated by this Agreement. Nothing contained herein
commits the parties to finally approve and execute a DDA upon any terms, and the parties
acknowledge that the DDA will be negotiated during the term of this Agreement.
Sctisn-2• Term of the DDA.
The DDA will be drafted so that performance by RT and its nominee pursuant to
the terms thereof will be available to such parties for a period of ten (10) years from its effective
date.
FROM ECON PEl% AGENCY �,,,, FA,,: N0 909 34 5216 09-0e-95 03:12 P.0'
IN WITNESS WHEREOF, the Agency and RT have each signed this Agreement
as of the date first set forth above.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BER.NAR.DINO
Dated: May 15, 1995 By-/'ter:'71-L.. ' /�� L� /
Tom Minor
Chairman
APPROVED AS TO FORM AND ATTES
CONTENT:
L
Agency Cot re�a
ROUNDING THIRD LLC
Dated: May 15, 1995 By: _
,lHaig Ke egian, tianager
sa17.0,=1.lt6rDcrnw
5111145 12--10
-7-
® DOUBLE
EAGLE
SPORTS
I N T E R N A T I O N A L E
M9)881-1547 - FAX(W9)88&1.;-%2
September 25, 1995
Mayor and Common Council/EDA Commission
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
I
RE: The Stadium/Complex
Central City South Project Area
"The Sports Gardens"Plan of Development
(Double Eagle Sports Internationale/Rounding Third)
$40±Million Recreation/Entertainment/Commercial Area
"Progress Update"
Dear Mayor and Council/EDA Commission:
Unfortunately the City/EDA Wednesday, September 20, 1995 meeting regarding the
Special Election and carried under the City/EDA Commission's May 15, 1995 Exclusive
Agreement(Stadium/gaming/recreation complex) with Rounding Third,was left with little time for
presentation. Therefore, "The Sports Gardens" applicable $40± Million investment within the
Central City South project area was held in abeyance by a tie vote and one abstention for further
consideration. The May 15, 1995 Agreement, which was approved by six (6) Commissioners,
was clearly related to City Budget finance, City/EDA finance, and including, but not limited to the
Stadium Costs.
It is our understanding this matter will again be on the Monday, September 25, 1995,
12:00 P.M. Agenda of the Council/EDA Commission. Enclosed herewith is the applicable
Double Eagle/Rounding Third September 20, 1995 letter submitted to the Mayor and Council/EDA
Commission at their like dated meeting. The September 20, 1995 meeting was scheduled for 4:00
P.M., but did not take place until approximately 5:30 P.M.
With only being allowed limited time for presentation Double Eagle/Rounding Third
submitted it's (1) applicable September 20, 1995 letter referenced above and book covering the
City of San Bernardino Special Election required by AB 100 with City Revenue Ordinance, and
(2) San Bernardino Stadium City/EDA Commission's$15±Million Interim Loan for the Stadium.
Under the City/EDA Commission's alternate September 5, 1995 long term Plan of Finance the
$15±Million Stadium fundings Public Bond Debt Service Cost is $52± Million applicable thereto.
Under the May 15, 1995 City/EDA Double Eagle/Rounding Third Agreement there is no cost to the
public and will represent a $52± Million savings plus multi-million in public revenues. The
September 20, 1995 submittal and letter also included our Certified Check to the City in the amount
of$5 thousand toward the full Special Election costs and commitment to submit the balance within
10 days of receiving the request for the balance required from the City Clerk (estimated $100±
thousand).
®� DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO,CALIFORNIA 92406,U.S.A.
9/.2 s/ps
Page 2
In addition, a Revenue Ordinance for gaming has always been required, and drafts thereof
for consideration were provided the City Attorney on September 15, 1995 and the Council on
September 19, 1995 as prepared by Mudge Rose Guthrie Alexander & Ferdon (International Law
Firm).
For reference in consideration of the Monday, September 25, 1995 Agenda is the following
enclosed documentation:
1. September 20, 1995 Double Eagle/Rounding Third letter to the Mayor and Council/EDA
Commission regarding City/EDA Commission Overall Long Tenn Plan of Finance,
including the Stadium Cost per the May 15, 1995 City/EDA Agreement with Rounding
Third.
2. Draft Analysis of the September 5, 1995 City/EDA Commission Overall Long Term Plan
of Finance (includes City/EDA $15± million Stadium Interim Loan) and June 5, 1995
City/EDA Commission Overall Long Term Plan of Finance (includes Stadium Interim
Loan).
3. June 7, 1995 The Sun Sports Article titled: "Dodgers not worried by Casino Plan".
4. September 13, 1995 Mayor Minor letter to Mr. Tom Tingle, HOK, Sports Stadium
Architects for the City/EDA and ratifying that Double Eagle can retain the firm for the
required Stadium Upgrades. This was ratified by the City/EDA in contemplation of the
Stadium/Gaming/Recreation Complex implementation by Double Eagle/Rounding Third.
5. May 2, 1995 City Clerk's Interoffice Memorandum(Special Election Gambling)outlining a
general calendar. This Memo was prepared prior to Mayor Minor executing the approved
City/EDA May 15, 1995 Rounding Third Agreement. This was prepared in contemplation
of the Rounding Third Agreement.
6. May 15, 1995 City/EDA and Rounding Third Exclusive Agreement
(Stadium/Gaming/Recreation Complex) executed by the MayodEDA Chairman and
approved by the City/EDA Special and Bond Counsel, etc. This Agreement contemplated
the Stadium/Gaming/Recreation Complex and Special Election, if required.
7. Front Book Covers only of the Double Eagle and/or related documentation submitted to the
Mayor and Council/EDA Commission following their June 5, 1995 request of Warner and
Aaron Hodgdon to review the June 5, 1995 Overall Long Tenn Plan of Finance and
applicable Stadium Costs, i.e.: June 19, 1995; July 10, 1995; July 24, 1995; August 21,
1995; August 24, 1995; September 5, 1995; September 20, 1995.
8. September 21, 1995 Draft Analysis of Stadium Construction Bids ($2.5± Million or 26%±
Over Budget of the City/EDA Project Manager's and Construction Manager's estimated
$8.7± Million Costs, and $4.5± Million or 50% Over Budget of the City/EDA Project
Manager's and Construction Manager's Budget per the August 4, 1995 Construction
Manager Agreement calling for building of the Stadium in accordance with the Architect's
plans and specifications prepared for the City.
Irrespective of the Construction Manager Agreement provisions, $1.9± Million of Trade
Items were subsequently deleted from the Architect's drawings and Specifications before
the September 21, 1995 bid opening. Therefore, the combined September 21, 1995 Over-
Budget Bids of$2.5±Million and Over Budget Deleted Items of$1.9± Million total $4.4±
DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO,CALIFORNIA 92406,U.S.A.
Page 3
Million. The Budget Estimate $8.7± Million, Deleted Over-Budget item $1.9± Million,
September 25, 1995 Over-Budget Bids $2.4± Million, environmental clean up of $1.3±
Million, soft costs $2± Million, off-site improvements/fees $1.7± Million, contingency
$500 thousand and land $1.7± Million total projected Stadium costs of $20.2± Million,
including the S.P. land only.
9. On Wednesday, September 13, 1995, Mayor Minor specified meeting dates of Friday,
September 15, 1995, 2:00 P.M. and Wednesday, September 20, 1995 to review the
various Draft documentation prepared by Double Eagle/Rounding Third Legal Counsel
MRGA&F with the City Attorney for consideration. The City Attorney was unable to
attend the meetings.Following the City/EDA Commission's September 20, 1995 meeting,
Double Eagle/Rounding Third personally requested a time they and their legal counsel
could meet with the City Attorney to review this important matter to the City/EDA Overall
long term Plan of Finance. The City Attorney reiterated that he would have no time on his
schedule to consider meeting until after Friday, September 29, 1995, thus curtailing the
May 15, 1995 Agreement.
Therefore, Double Eagle/Rounding Third legal counsel MRGA&F has prepared the Draft
City Ordinance(s) required to meet the Urgency AB 100 legislation, i.e.: (1) day(s) of
election, (2) mail ballot and (3)rescind election.
Double Eagle/Rounding Third has gone forward under the May 15, 1995 City/EDA
Commission's Agreement, as subsequently further advised by the City/EDA thereafter, and in
"good faith" at great capital expense and commitment. Therefore, the Mayor and Council/EDA
Commission,City Attorney and City/EDA Special and Bond Counsel are respectfully requested to
act accordingly.
Res tfully,
Aaron W. Hodgdon
President,Double Eagle Sports Internationale
Manager,Rounding Third
cc: Timothy Sabo, Esq., EDA Special and Bond Council
James Penman, City Attorney
Donald L. Hunt, Esq., Managing Partner, Mudge Rose Guthrie Alexander & Ferdon
(Washington,D.C.,New York,New York,West Palm Beach,Florida,Paris,Tokyo)
Steve Dzida, Esq., Jackson, DeMarco & Peckenpaugh
Shauna Clark, City Administrator
Rachel Clark, City Clerk
Lorraine Velarde, Executive Assistant to the Mayor
Warner Hodgdon, Project Coordination
DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO,CALIFORNIA 92406,U.S.A.
DOUBLE
EAGLE
SPORTS
I N T E R N A T 1 O N A l E
(909)881-1547 � FAX(909)886-9962
September 20, 1995
Mayor Minor and Council/EDA Commission
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Progress Update - "The Sports Gardens" For:
City/EDA Commission Meeting Wednesday, September 20, 1995
RE: City/EDA Commission Overall Long Term Plan of Finance Refunding,Refinancing and
Restructure of Public Bonds and Debt Service Cost(s) through the Year 2025±:
(1) June 5, 1995 and July 24, 1995 Approved Plan of Finance Six (6) Project Areas
$20.7±Million New Capital through the Year 2025±(Public Bond Debt Service
Cost(s) $316±Million)
(2) September 5, 1995 Amended Plan of Finance Seven (7)Projects Areas$29±Million
New Capital Through the Year 2025±(Public Bond Debt Service Cost(s)$326±
Million)
Includes City/EDA Interim Loan for Stadium Construction Costs$13 Million,
Southern Pacific Railroad Land$1.7±Million and Totals Approximately$15±Million
(3) "The Sports Gardens"Funding of the Required December 19, 1995 City Special
Gaming Election and Ordinance ($100±Thousand)Under the May 15, 1995
Rounding Third LLC Agreement(Double Eagle Sports Internationale)
(4) City/EDA Commission's Wednesday, September 20, 1995, 4:00 P.M. Continued
Meeting,i.e.: Revenue Ordinance, and Gaming/License Special Election December 19,
1995
Dear Mayor and Council/EDA Commission:
Before the Council/EDA Commission this date are their previously contemplated
consideration for several actions required to implement the City/Economic Development
Agency's Overall Long Term Plan of Finance. Foremost to the structure of the
City/EDA Commission's Overall Long Tenn Plan of Finance was their previously
approved May 15, 1995 exclusive agreement entered into with the Rounding Third LLC
and executed by Mayor/EDA Chairman Minor accordingly. The Agreement addressed
acquisition/funding of the $15± Million Stadium in the Central City South Project Area
and including, but not limited to, a casino type gaming facility 43± acre Complex, i.e.:
recreation, health, entertainment and commercial etc. extending from Rte. 215 east to
"E" Street, Rialto Avenue south to Mill Street.
DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO,CALIFORNIA 92406,U.S.A.
Page 2
The City/EDA purpose of exclusive agreement was to implement the optimum
development of the area and to curtail the on-going economic decline of the City's
Central (Government Center, Law and Justice, two retail malls and other
commercial/business activity etc.). This would generate major City/EDA public revenues
for reimbursement of the City/EDA $15± Million interim loan to construct the stadium
and other incremental property tax, sales tax, Franchise Fees, Business License Fees,
utility taxes etc.. In addition there would be generated approximately 1,000 jobs in
support of the existing diverse job base. In order to further understand the urgency of
implementing this vital phase of the City/EDA Commission's Overall Long Term Plan of
Finance the following is a condensed fiscal profile.
On June 5, 1995 the City/EDA staff, Special and Bond Council and Financial
Consultants presented their recommended Plan of Finance for refunding, refinancing and
restructuring of the six (6) economically viable Redevelopment Project Areas. From this
refunding $10 Million would have been transferred from the State College Project Area
for payment toward the $13 Million of the Stadium Costs. The City/EDA Commission
had concerns as to the Overall Long Term Debt Structure and requested Warner and
Aaron Hodgdon to work with City/EDA Staff to improve their recommended May 31,
1995 Plan of Finance which included therewith the $13 Million Stadium funding.
Under the City/EDA Staff's/Consultant's May 31, 1995 recommended Plan of
Finance the six (6) Projects Public Bond issued would be increased from $73± Million to
$104± Million and extended from the year 2010 to 2025±. This was projected to
generate the last available new capital of $26± Million available to the City/EDA for
redevelopment through 2025. $10 Million of this would be used toward Stadium Costs
projected at that time to total construction costs of $11.3 Million and immediate land
cost of$1.7 Million (total $13 Million).
To achieve the June 5, 1995 projected $26± Million new capital the City/EDA
Public Bond Debt Service cost(s) for the six (6) project areas alone was increased by
$86± Million through the year 2025±, ($117± Million increase to 203± Million) a*4
eemnr-ised of $97t Million Senior- Bonds and $ 7± Million junior- Bonds The May 31,
1995 City/EDA/Consultant's June 5, 1995 Recommended Plan of Finance was based on
the Bonds being insured in order to have a AAA rating. The costs ratio to the City/EDA
($26± Million new capital and $86± Million costs) was 3.3 to 1 and this increased the _..
City/EDA all-inclusive Project Area(s) Public Bond Debt Service cost(s) to $316±
Million.
As structured on June 5, 1995, the City/EDA/Consultant's recommended Plan of
Finance could not meet insurance requirements for the required AAA rating. Therefore,
by the Friday, September 1, 1995 4:29 P.M. City/EDA Supplemental Agenda Staff
Report, City/EDA Staff, Special and Bond Counsel and Financial Consultants
recommended a significantly amended Plan of Finance over their May 31, 1995 Staff
Report previously presented and approved by the City/EDA Commission on June 5,
1995.
Their new recommendations for the refunding, refinancing and restructure now
covers seven (7) project area(s). Under this September 5, 1995 Plan of Finance the
projects Public Bond Debt would be increased from $76.5± Million to $114± Million
DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO,CALIFORNIA 92406,U.S.A.
Page 3
and extended from 2010 to 2025±. This would generate new capital of $29± Million.
$15±Million of this (mostly from the State College Project area) would be used toward
the Stadium Costs projected at this time, including land, to be in the $15± Million range.
To achieve the September 5, 1995 seven (7) project(s) $29.5± Million new capital
the City/EDA Public Bond Debt Service Costs for the seven (7) project area(s) alone will
increase by $104± Million ($114± Million to $218± Million comprised of $97± Million
Senior Bonds and $17± Million Junior Bonds).
The cost ratio of the City/EDA $29.5 Million new capital will be 3.6 to 1 and this
increases the City/EDA all-inclusive Project Area(s) Public Bond Debt Service costs to
$326± Million. Under the above September 5, 1995 City/EDA Staff and Consultants
recommendations approximately $15± Million of City/EDA new capital (50% of the
$29± Million new capital) would be used for the Stadium Construction and land costs
of$15±Million. As the $29.5± Million new capital Public Bond Debt Service Costs are
projected to be $104± Million through 2025± the proportionate and applicable Stadium
cost(s) is approximately 52± Million.
As requested by the City/EDA Commission on June 5, 1995 National Equity
Engineering has overviewed the City/EDA Staff/Consultant's recommendations on a
preliminary basis as their most recent Overall Long Term Plan of Finance was only a
projection as of Friday, September 1, 1995, 4:28 P.M. These preliminary basis
assumptions could adjust up or down depending on the final interest rate set by the
City/EDA Staff and Financial Consultants for the Senior Bonds and Junior Bonds at the
September closing.
Enclosed for convenience is the front cover of the September 5, 1995 Double
Eagle Book titled: "The Sports Gardens" Private Capital Investment and Plan of
Finance; overview of City/EDA and Double Eagle Friday, August 18, 1995; August 21,
1995 and August 23, 1995 meetings with Mayor Minor and Staff - Progress Update
Memorandum and August 31, 1995 forwarding letter. Submitted to: Council/Economic
Development Agency Commission Tuesday, September 5, 1995.
Double Eagle and Rounding Third look forward to continued working with the
City/EDA Staff, Consultants, Mayor, Council/EDA Commission in the immediate
implementation of "The Sports Gardens" Stadium/Complex under the City/EDA May
15, 1995 Agreement and/or July 10, 1995 and July 24, 1995 submittals applicable to the
unanimous City/EDA motion.
As outlined to Double Eagle by the City/EDA Staff on August 4, 1995 and
August 18, 1995 this would be in joint participation as part of the City/EDA May 15,
1995 City/EDA and Rounding Third Agreement covering the area from Rte. 215 east of
"E" Street, Rialto Avenue South to Mill Street. This would be "The Sports Gardens"
(Stadium $13 Million and concurrent $25± Million) public enterprise investment.
Enclosed is the HOK September 1, 1995 proposal letter to Double Eagle for $575-$675
thousand architectural fees for added Stadium upgrades and operations/maintenance
manuals.
DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO.CALIFORNIA 92406,U.S.A.
Page 4
For reference enclosed herewith is the front cover only of the Double Eagle
Sports Internationale Book and September 15, 1995 Draft Memorandum for
consideration of the Mayor and Council, City Attorney and EDA Commission by
Mudge Rose Guthrie Alexander & Ferdon, Los Angeles Managing Partner (Washington,
D.C., New York, New York, West Palm Beach, Florida, Paris, Tokyo) i.e.: City of San
Bernardino Revenue Ordinance. This draft memorandum and Draft Ordinance were
prepared in view of the required AB 100 legislation's January 1, 1996 "Sunset Date"
and applicable City Revenue Ordinance with City of San Bernardino Special Election.
Rounding Third LLC and Double Eagle LLC concurs and understands the
following required for the City/EDA Commission's Wednesday, September 20, 1995,
4:00 P.M. meeting.
Applicable and Required:
1. City of San Bernardino Revenue Ordinance, September 20, 1995
2. Tuesday, December 19, 1995 regular Special Election
(paid for by"The Sports Gardens", Rounding Third/Double Eagle)
Enclosed herewith is our (enclosed copy) Certified Good Faith check in the
amount of $5 thousand made payable to the City of San Bernardino. Under the May 15,
1995 City/EDA Commission's Agreement, the Special Election is not paid for by the
City, and the balance of the estimated $100± thousand cost(s) will be submitted to
Rachel Clark, City Clerk, within 10 days of her requesting same.
Rounding Third and Double Eagle pledge to continued working in full
coordination with the City/EDA to immediately implement"The Sports Gardens" public
enterprise investment for the Stadium/Complex, i.e.: recreation, health, entertainment,
commercial. This also requires mutual cooperation for carrying out the requirements of
the Special Election. In addition, Rounding Third and Double Eagle recognize the
provisions of the May 15, 1995 Agreement as to the San Manuel Band of Mission
Indians and will fully cooperate thereunder, but not limited to, in every effort.
Respectfully,
J. Jeffery Kinsell Aaron W. Hodgdon
Chainnan/CEO, Rounding Third Chairtnan/President/CEO,Double Eagle
cc: Shauna Clark, City Administrator
Rachel Clark, City Clerk
James Penman, City Attorney
Lorraine Velarde, Executive Assistant to the Mayor
Timothy Steinhaus, Agency Administrator
Timothy Sabo, Esq., Special and Bond Counsel
Donald L. Hunt, Esq., Managing Partner, Los Angeles
Mudge Rose Guthrie Alexander & Ferdon
(Washington,D.C.,New York,New York, West Palm Beach,Florida,Paris,Tokyo)
DOUBLE EAGLE SPORTS,HEADQUARTERS INTERNATIONALE
UNITED STATES POST OFFICE BOX 2146,SAN BERNARDINO,CALIFORNIA 92406,U.S.A.
First Interstate Bank
of California
First Highland Office N 2 2360206314
Interstate 2020 East Highland Avenue
a San Bernardino,CA 92404
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Sources
Total Bond Proceeds:
Senior lien ®® 96,900,000
Junior L"en
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State Collage 3,163,998
Southeast Industrial Park O OC� 2,523,068
Northwest 286,919
Uptown
iCity �O 171,818
Tri City � 706,102
CC North 1,010,460
South Valle 339,380
SUBTOTAL $ 8,201,745
Issuer's Contribution &Prior Issue Debt Service Funds 3 525 42�
Total Sources $ 125,727,165.50
Uses
Deposits to Escrow Fund to Redeem Prior Bonds:
State College Series 1989 13,344,765
State College Series 1990 11,459,798
State Copege Seies 1994 9,180,563
Southeast Industrial Park Series 1988 A 11,922,797
Southeast Industrial Park Series 1988 6 1,593,414
Southeast Industrial Park Series 1990 5,401,190
Southeast Industrial Park Series 1993 6,405,626
Northwest 3,125,599
Uptown 1,848,870
Tri Cr7y 7,647,683
Central City Notfh Series 1988 A 5,409,266
Central City North Series 1988 S 3,197,981
South Valle _ 3.686677
SUBTOTAL $ 84,224,129
New Money Proceeds:
State College 14,700,000
Southeast Industrial Park 5,750,000
Northwest 2,160,000
Uptown 1,400,000
Tri City 3,800,000
Central City North 638,000
South Valle 1.050 00
SUBTOTAL S 29,498,000
DSRF Senior Lien Bonds 7,184,300
08RF Junior Lien Bonds 1,442,500
Bond Insurance Premium 1,478,299
Underwriter's Discount 1,399,938
Costs of Issuance 500.000
SUBTOTAL $ 12,005,037
Total Uses 5 125,727,965.50
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O F F I C E O F T H E M A Y 0 R
T O M M i N O R
M A Y O R
September 13 , 1995
Mr. Tom Tingle
HOK Sports
323 W. 8th Street
Kansas City, MO 64105
Dear Mr. Tingle :
RE: BASEBALL STADIUM PROJECT
It has come to my attention through Mr. Warner Hodgdon, that you
requested this correspondence from me.
Please be advised that I have no objections to your company
contracting with Double Eagle, Inc. for professional services which
will be private and apart from those services being rendered under
your contract with the City of San Bernardino/Economic Development
Agency. I further want it understood that any such agreement with
Double Eagle, Inc. cannot interfere or slow down. the City of San
Bernardino/Economic Development Agency process.
If you require clarification, please contact me directly at (909)
384-5133 .
Very truly yours,
y
Tom Minor
Mayor
TM:JLV:sc
cc: "N,yDouble- Eagle, Inc.
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C I T Y OF S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
CITY CLERK'S OFFICE
DATE: May 2, 1995
TO: Memo for the Record (Special Election)
FROM: Rachel Clark, City Clerk
SUBJECT: General Info - Special Election (gambling)
COPIES : Linda Hartzel
-------------------------
Here' s a very general calendar on setting of a special election for
a measure relative to permitting gambling in the City:
1 . Monday, June 5, 1995 City Council adopts resolution
calling for a special election
Pursuant to Ordinance No. MC
877, special election to be
held on a Tuesday, not less
than 90 days nor more than 135
days following such call .
If an established election date
set by Charter or Elections
Code falls within that time
period, such special election
shall be held on that date.
2 . Sunday, September 3, 1995 90 days from June 5, 1995
3 . Wednesday, October 18, 1995 135 days from June 5, 1995 ^
4 . Dates Election Can be Set
if Reso adopted 6/5/95 • Tuesday, September 5, 1995
Tuesday, September 12, 1995
Tuesday, September 19, 1995
Tuesday, September 26, 1995
Tuesday, October 3, 1995
Tuesday, October 10, 1995
Tuesday, October 17, 1995
1 . Monday, June 19, 1995 Council adopts resolution
2 . Sunday, September 17, 1995 90 days from June 19, 1995
3 . Wednesday, November 1, 1995 135 days from June 19, 1995
4 . Possible Election Dates : Tuesday, September 19, 1995
Tuesday, September 26, 1995
Tuesday, October 3 , 1995
Tuesday, October 17, 1995
Tuesday, October 24 , 1995
Tuesday, October 31, 1995
EXCLUSIVE NEGOTIATING AGREEMENT BETWEEN THE
ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
ROUNDING THIRD, LLC
This Exclusive Negotiating Agreement (the "Agreement") is entered into by and
between the Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Agency"), and Rounding Third, LLC, a California Limited Liability Company
("RT"), and for the convenience of the parties shall be dated as of May 15, 1995 (the "Effective
Date").
Section 1. Recitals.
1.1 The Agency desires to have certain property within the Central City South
Redevelopment Project Area of the Agency established pursuant to Ordinance No. 3572 and as
amended by Ordinance No. MC-564 (the "Project Area"), developed in furtherance of the
Agency's redevelopment objectives. The property consists of approximately forty-three(43)acres
as shown on Exhibit 1.1.
1.2 The Agency desires to cause approximately thirteen (13) acres of the
property to be developed as a sports, recreation, entertainment complex including, and centered
about, a stadium suitable as a home facility for a minor league professional baseball team, with
the balance to be devoted to commercial activity focused on a gaming or other type of casino
facility. In this Agreement the 13 acre site is referred to as the "Stadium Site", the 30 acre site
is referred to as the "Entertainment Site", and the entire 43 acre sports/gaming proposed
development is referred to as the "Complex".
1.3 RT has assembled a team of consultants experienced in the development and
financing of sports, recreation and related stadia and facilities. RT's team also has experience and
expertise in the financing and development of gaming facilities which operate under and in
accordance with the provisions of the laws of the State of California and the municipalities in
which such gaming facilities are located.
1.4 Recognizing that constructing a City of San Bernardino ("City") owned
baseball stadium and financing and developing a world class Complex requires sources of revenue
other than those usually available to the Agency, RT proposes to prepare and present to the
Agency a plan which provides for the construction of the Stadium Site and development of the
entire Complex, all at no cost to the Agency. In addition, this plan will provide not only the
initial financing but also an ultimate revenue stream to support the entire Complex, as well as
produce additional revenues to the Agency and the City.
-1-
1.5 The purposes and goals of this Agreement, therefore, are to enable the
parties to work together to develop the Complex and to provide RT with the time necessary to
assemble this package in a format suitable for incorporation into a Disposition and Development
Agreement ("DDA").
1.6 The Agency's power and authority to acquire and redevelop property
derives from the Community Redevelopment Law(Health&Safety Code Sections 33000, ft=.)
and the Agency must comply with all procedural requirements of the Community Redevelopment
Law in carrying out its redevelopment activities.
Section 2. Exclusive Negotiation.
2.1 For a period of one hundred eighty (180) days from the Effective Date, the
Agency and RT hereby agree to negotiate in good faith for the purpose of entering into a DDA
covering the entire Complex. During this period, the Agency agrees that it will not negotiate with
any other person or entity concerning any aspect of the Complex. The term of this Agreement
will end on the first to occur of:
(i) execution of a definitive DDA; or
(ii) termination of the 180 day exclusive negotiation period; or
(iii) mutual written consent to terminate.
During the negotiations the Agency further agrees to identify a desired
configuration of the Complex, including the total site proposed for the gaming/casino facility and
to work with RT's team in the preparation of preliminary site studies and architectural and
engineering work.
2.2 During the term of this Agreement, each party shall bear its own costs.
Section 3. Terms and Conditions of the Proposed Disposition and
Development Agreement.
3.1 During the exclusive negotiation period, RT will prepare and present to the
Agency a plan under which RT will:
3.1.1 Establish a development entity, the ownership, directors, and senior
management of which are all persons acceptable to the Agency.
3.1.2 Prepare and present to the Agency a DDA pursuant to which RT will make
a payment to the Agency upon execution of the DDA of an amount presently
estimated to be$15,000,000 for certain rights as may be granted to RT for the
development of the Entertainment Site and the construction of the
gaming/casino facility(such fee in the amount as may be finally agreed upon
-2-
by the parties in the DDA shall be herein referred to as the "Development
Fee"). From the proceeds of the Development Fee, the Agency shall remit
to RT a Transaction Fee equal to not more than$1,000,000 based upon the
total amount of the Development Fee being equal to $15,000,000, or such
lesser amount of the Transaction Fee reduced proportionately if and to the
extent the Development Fee may be a lesser amount and agreed to by the
Agency in the DDA. If at any time RT is able to obtain a Development Fee
for payment to the Agency,whether in a single transaction or in a series of
transactions,in an aggregate amount greater than the anticipated$15,000,000
Development Fee in cash or in other valuable consideration, such excess
amounts as may become available from time to time shall be that of the
Agency and not an asset, cash or other valuable consideration of RT;
provided, however,the Agency shall within ten(10) days of receipt of any
such amount in excess of the$15,000,000 figure,remit twenty percent(20%)
of such excess amount to RT in addition to the Transaction Fee as set forth
above.
RT or its assignee or successor in interest shall remit funds to the Agency if
and to the extent deemed necessary by RT for the acquisition of the
Entertainment Site, either in whole or in part and from time to time as
deemed appropriate by RT,in such amounts as may be necessary to acquire
such sites and to pay all costs reasonably required to be paid as a part of such
acquisition by the Agency and disposition from the Agency to RT. As an
alternative thereto,RT may elect to purchase, lease or otherwise acquire an
interest in the Entertainment Site, or any portion thereof, without any
involvement of the Agency in any manner whatsoever assisting in such
acquisitions.
3.1.3 Agree that during the time set forth in the DDA's Schedule of
Performance, RT will cause construction of the gaming/casino facility, with
parking and related structures, to be commenced within ten(10) years after
the execution of the DDA.
3.1.4 The gaming/casino development and operation will be subject to at least the
following minimum conditions:
(i) : The operation will be as permitted under the laws of the State of
California, as from time to time amended.
(ii) The ownership, directors, officers and senior management of the
entity which actually operates the gaming/casino facility will all be
-3-
subject to approval of appropriate regulatory entities of the State of
California.
(iii) The gaming/casino facility shall be developed and built in
accordance with the City's General Plan and its then current
Development Code, pursuant to a tract map as may be approved by
the City's Planning Commission.
3.1.5 The entity which operates the gaming/casino facility will do so under a
- franchise agreement with the Agency and the City pursuant to which an
annual franchise fee consistent with franchise fees paid in Southern
California for such facilities will be paid to the City after allowing for:
(i) cost recovery of the baseball stadium construction costs; (ii) any fees
imposed by any current or future regulatory entity of the State of
California; and (iii) any land acquisition and carry costs associated with the
gaming/casino facility whether in the form of a ground lease, note or cash
purchase amount. For example, it is contemplated that the annual franchise
fee during the not to exceed ten (10) year cost recovery period will be
equivalent to six percent (6%) of gross revenues, and thereafter will be
equivalent to 13.2% of gross revenues.
3.2 The Agency understands and agrees that the DDA will provide that, at any
time during its term:
3.2.1 The Agency will sell the Entertainment Site to RT on the terms and for the
purchase price outlined in Section 3.1.2 above. Included in the assets to be
conveyed on sale of the Entertainment Site will be an exclusive franchise
granting to RT or its nominee gaming/casino development and operation
rights consistent with the City's General Plan.
3.2.2 The Agency and the City will grant to RT's nominee or assignee an
exclusive franchise to conduct gaming/casino operations as authorized by
State law, in the following areas:
(i) the Entertainment Site; and
(ii) anywhere within the City's redevelopment project area boundaries for
the term of the DDA.
3.2.3 In addition, the Agency and the City will include within the exclusive
gaming/casino franchise of RT or its designee, a provision designating it
as the exclusive franchise of such business within the City limits for each
200,000 residents therein.
-4-
0
3.2.4 The Agency will make available to RT or its nominee the right to purchase,
at fair market value on the date of purchase as value is determined by
independent appraisal, up to a total of an additional fifty (50) commercially
zoned acres located within the Project Area boundaries.
3.3 Nothing contained in this Agreement shall be construed to require either
party to enter into the DDA or to consider only those items, terms and conditions as addressed
herein. The DDA, if approved, may contain such modifications to this Agreement or such other
terms and conditions as the parties may approve. Neither party represents or warrants that a DDA
will be entered into by and between the parties solely by the approval and execution of this
Agreement.
Section 4. Election.
As part of this Agreement, the Agency agrees to assist RT in requesting the City
to take all actions necessary to call and hold, at RT's expense, a special election designed to
authorize such of the activities discussed in this Agreement which requires an election if mutually
deemed to be advisable that such special election be held prior to the termination of this
Agreement.
Section 5. San Manuel Band of Mission Indians Right of First Refusal.
The Parties agree that prior to the approval and execution of the DDA the San
Manuel Band of Mission Indians ("San Manuel") will have a right of First refusal, for a thirty-day
period to commence not less than sixty (60) days prior to any scheduled consideration and
approval of the DDA by the Agency, during which San Manuel will have the exclusive right, on
the terms and subject to the conditions set forth in the DDA, to become the operator of the
gaming/casino operation to be located on the Entertainment Site and to become the sole
redeveloper or to become a joint venture redeveloper with RT pursuant to any such DDA. Such
DDA if approved and executed with San Manuel as a parry thereto will contain at least the
following terms requiring that San Manuel will:
(i) Reimburse the Agency for the Agency's out-of-pocket costs arising out of
or connected with this Agreement;
(ii) Pay RT's Transaction Fee and reimburse RT for all of its out-of-pocket
costs arising out of or connected with this Agreement;
(iii) Acknowledge and agree that RT, or its designee, may be the fee owner of
the Entertainment Site and will be authorized to enter into a ground lease
or other transfer or disposition of title to or possession of the underlying
land for the gaming/casino facility;
-5-
3
(iv) Acknowledge that RT shall have the exclusive right to purchase the fifty
(50) commercially zoned acres referenced in Section 3.2.4 above; and
(v) Commence to phase out any casino which it then operates in the County of
San Bernardino, not later than the opening date of the first phase of any
gaming/casino facility to be located on the Entertainment Site and to cease
all operations of any such casino within twelve (12) months thereafter.
Section 7. Assignment. Sale, Joint Venture By RT.
This Agreement, any of the items granted to RT under this Agreement, including
the position of purchaser, owner, landlord, tenant, or developer of the Entertainment Site, the fifty
(50) commercially zoned acres, and/or the right to own, operate or lease the gaming/casino
facility may be sold, or assigned, or transferred by a joint venture, or similarly structured by RT,
provided that the Agency gives its prior written approval. Understanding that all parties need
flexibility to accomplish the goals established by this Agreement, the Agency agrees that it will
grant any reasonable request for such approval. The DDA will contain a provision similar to this
Section 7.
Section 8. Miscellaneous.
Any amendment to this Agreement must be in writing and signed by both parties.
Where the consent of either party to this Agreement is required, that party agrees to act
reasonably. This is an agreement giving RT exclusive negotiation tights during its term, and it
does not create a partnership or any other contractual relationship between the parties. Each party
understands and agrees that it will bear its own costs in taking the actions, preparing the materials,
and conducting the negotiations contemplated by this Agreement. Nothing contained herein
commits the parties to finally approve and execute a DDA upon any terms, and the parties
acknowledge that the DDA will be negotiated during the term of this Agreement.
Section 9. Term of the DDA.
The DDA will be drafted so that performance by RT and its nominee pursuant to
the terms thereof will be available to such parties for a period of ten (10) years from its effective
date.
-6-
IN WITNESS WHEREOF, the Agency and RT have each signed this Agreement
as of the date first set forth above.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
Dated: May 15, 1995 By:
om Minor
Chairman
APPROVED AS TO FORM AND ATTES
CONTENT:
�-
Agency Co ere
ROUNDING THIRD, LLC
Dated: May 15, 1995 By:
aig Ke egian, ganager
SBE010001-1101DOG2O69
5112/95 12:10
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SAN BERNARDINO STADI UMI COMPLEX
PROGRESS UPDATE
(For Discussion Purposes Only)
MONDAY, JUNE 59 1995 - MONDAY, JUNE 199 1995
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For: Mayor/EDA Chairman Tom Minor
Common Council/EDA Commission
Shauna Clark, City Administrator
Tim Steinhaus, Agency Administrator
Tim Sabo, City/EDA Special and Bond Counsel
Ray Salvador, Mayor's Administrative Assistant
Rhonda M. Connolly, Miller and Schroeder Financial
Robert Matich, Matich Construction Managers
Thomas L. Tingle, HOK,Project Architect
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Double Eagle Sports Internationale
Private Capital Investment and Plan of Finance
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san bernvdieno stadium
Submitted to:
The Mayor and Common Council / Economic Development Commission
Monday, July 10, 1995 - Monday, July 24, 1995
DOUBLE
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SPORTS
INTERNATIONALE
(909)881-1547 � FAX(909)886-9962
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Double Eagle Sports Internationale
Private Capital Investment and Plan of Finance
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Draft Submitted For Discussion Purposes Only:
City/Economic Development Agency Meeting Friday, August 18, 1995 2:00 P.M.
Final Progress Update Memorandum and forwarding letter Submitted:
Council/Economic Development Agency Commission Monday, August 21, 1995
DOUBLE
EAGLE
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I N T E R N A T I O N A L E
(909)881-1547 � FAX(909)886-9962
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DOUBLE _ NATIONAL
EAGLE ' EQUITY
SPORTS °
INTtRN4T{O nAaE •
wem•w•rAxmorssex•s: 11�.._B! ! 1 r� L1*iL nr0°•.Ii.n L�mu1Oiiuri`w:�cuoasi
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SAN BERNARDINO STADIUM unvm,w mx wa•wm•m It
4000 SEATS 1.700 PARITG•14010 SLATS 0.100 PARIaMG
1 1 1 1 1 1 A l l 1
1
1 1 1 1
1 • 1 1 ! 1 1 ••1 1 f 1 1
0
"DRAFT ANALYSIS"
SAN BERNARDINO STADIUM
BID OPENING, SEPTEMBER 21, 1995, 10:00 A.M.
RESULTS BY TRADE ITEM NO.:
Bids Low Bids Total Div. 8/18/95 Difference
Matich Est.
1. Trade Item No. 2 - Landscaping & Irrigation
Valley Crest Landscape 169,450 169,450
Terr-Cal Construction, Inc. 184,650
Nadori Landscape 206,721 FOR DISCUSSION
2. Trade Item No. 2A - Chain Link Fencing PURPOSES ONLY
Econo Fence 19,634 19,634
Alcorn Fence 23,575
3. Trade Item No. 2B - Asphalt Paving/Curb & Gutter
Cooley Construction 578,346 578,346
4. Trade Item No. 2C - Playing Field Earthwork. Drainage & Turf
Nadori Landscape 536,190 536,190
Terr- Cal Construction 635,000
Valley Crest Landscaping 657,850
Total Sitework 1 ,3,03,620 1 ,696,000 392,380
5. Trade Item No. 3 - Cast-in-Place Concrete Sidewalks
Cambridge Concrete 1 ,462,785 1 ,462,785
K.L. Neff Construction Company 1 ,789,621
W.D. Gott Construction 1 ,929,468
6. Trade Item No. 3A - Structural Precast Concrete
Niobrara River Company 343,000 343,000
T-Pac 439,850
Pond(?) Pacific 460,000
Willis Construction 485,000
Total Concrete 1 ,805,785 2,018,000 212,215
7. Trade Item No. 4 - Main Entrance-Concrete Masonry & Tile Etc
No Bids Received Est. (See note #1) 84,000
Total Entrance Concrete/Masonry 84,000 84,000 0
Page 1 of 6
0
Bids Low Bids Total Div. 8/18/95 Difference
Matich Est.
8. Trade Item No. 5 - Structural & Miscellaneous Steel
Vulcan Steel 1 ,537,471 1,537,471
Total Structural & Misc. Steel 1 ,537,471 846,000 -691,471
9. Trade Item No.6- Rough & Finish Carp Doors & Frames
Mar-lyn Builders, Inc. 311 ,524 311 ,524
Total Rough & Finish Carpentry 311 ,524 103,000 -208,524
10. Trade Item No. 7 - PVC Roofing & Dampproofing
No bids Est. (See note #2) 40,000
11. Trade Item No. 7A - Building Insulation FOR DISCUSSION
Insulcom 24,940 24,940 PURPOSES
12. Trade Item No. 7B - Roof & Soffit Panels Sheet Metal 0���
No Bids Est. (See note #3) 317,060
Total Roofing, Insulation, Panels & Sheet Metal 382,000 382,000 0
13. Trade Item No. 8 - Steel Doors & Frames (FOB Jobsite)
Construction Hardware Co. 63,500 63,500
14.Trade Item No. 8A - Overhead Doors & Grills r t �F
No Bid Est. (See Note #4) 25,000
15.Trade Item No. 8B - Glass & Glazing
Padua Glass 194,700 194,700
Mitchell Glass 195,000
16. Trade Item No. 8C - Finish Hardware (FOB Jobsite)
Construction Hardware Company 42,300 42,300
Total Doors, Grills, Glass Glazing, & Hardware 325,500 160,000 -165,500
17. Trade Item No. 9 - Lath & Plaster Fireproofing
E.F. Brady Company, Inc. 844,039 844,039
Clint Casdon 938,885
Page 2 of 6
Bids Low Bids Total Div. 8/18/95 Difference
Matich Est.
18. Trade Item No. 9A - Tile
J. Colavin & Sons 258,900 258,900
19. Trade Item No. 9B - Acoustical Ceilings
E.F. Brady (Combo Bid Items 9 & 913 was 55,955 55,955
899,994 less 844,955 = 55,955) FOR DISCUSSION
20. Trade Item No. 9C - Athletic Flooring PURPOSES ONLY
Mikes Custom Flooring 71 ,390 71 ,390
Western Regional Floors 75,830
21. Trade Item No. 9D - Painting F' 'Saunders & McMillin, Inc. 183,458 183,458 A `l
Total Lath Plaster, Tile, Acoutical, Flooring & Painting 1 ,413,742 1 ,154,000 -259,742
22. Trade Item No. 10 - Toilet Partitions & Accessories
Pacific Building Specialties 65,414 65,414
Stumbach & Associates, Inc. 69,129
23. Trade Item No. 10A - Flagpoles
No Bids Est. (See note #5) 7,000
Section 10500 - Metal Lockers (Not in Trade Items)
Est. (See note #6) 10,000
Total Toilet Partitions & Acc, Flagpoles & Metal Lockers 82,414 99,000 16,586
24. Trade Item No. 11 - Stadium Game Equipment
No Bid Est. (See note #7) 115,000
Total Stadium Game Equipment 115,000 215,000 100,000
25. Trade Item No. 12 - Stadium Seating
Excluded per Addendum #1 N.I.C. N.I.0 N.I.C. N.I.0
26. Trade Item No. 14 - Elevators
Montgomery Kone 154,884 154,884
Total Elevators 154,884 115,000 -39,884
Page 3 of 6
V
Bids Low Bids Total Div. 8/18/95 Difference
Matich Est.
27. Trade Item No. 15 - Fire Sprinklers
Daart Engineering 105,845 105,845
28. Trade Item No. 15A - Plumbing
Redlands Plumbing 987,783 987,783
Fisher Plumbing (combo bid 15 & 15A) 1 ,150,000 �O� DISCUSSION
Don Brandel Plumbing 1 ,078,000
A.O. Reed & Co (combo bid 15A & 156) 1 ,798,000 PURPOSES ONLY
29. Trade Item No. 15B - HVAC
Arrowhead Mechanical 277,570 277,570
Total Fire Sprinker, Plumbing & HVAC 1 ,371 ,198 810,000 -561,198
30. Trade Item No. 16 - Electrical
Cadri Electric 1 ,675,000 1 ,675,000
Gregg Electric 1,746,000
Helix Electric 1 ,790,000
Paige Electic 1 ,878,490 LJ F 7
Hooke(?) & Steinley 2,189,272
Total Electrical 1 ,675,000 710,000 -965,000
OVER BUDGET:
Sub-Total (Without Stadium Seating) 10,562,138 8,392,000 -2,170,138
Percent Bids Over Budget ($8,392,000) -25.86%
Stadium Seating 300,000 300,000----,
Sub-Total (With Stadium Seating) 8,692,000 -2,470,138
Percent Bids Over Budget (with Stadium Seating $8,692,000) -28.42%
Major Items Not In Contract (NIC), deleted from final plans required for bids -1,931,310
TOTAL OVER BUDGET -4,401,448
Percent Bids and Deleted Items over budget ($8,692,000) -50.64%
Page 4of6
FOR DISCUSSION
Footnote One: PURPOSES ONLY
1. Used same 8/19/95 budget estimates
2. Estimate was from 8/2/95 budget
3. 713 estimate is the balance of the 8/18/95 budget, less 7 & 7A
4. Estimate from NEE
5. Estimate from 9/2/95 budget
6. Includes metal lockers in Division 10, not listed in trade items
7. Deleted $100,000 from Stadium Game Equipment estimate, sound reinforcement
now included in Electrical
Footnote Two:
Major items excluded per Addendum #1:
Deleted Stadium Seating (Alternate City Lease Purchase) 300,000
City(owner) to provide security guard service est. 25,000
Deleted 34 - 15 gal trees est. 3,000
Chain link fencing in lieu of ornamental (N & N/W) est. 20,000
Eliminated concrete walks around concession areas est. 10,000
358,000
TOTAL TRADE ITEMS - (30)
REQUIRED THREE BIDS ANALYSIS:
Three Bids or More Received - Trade Item No's: 2, 2C, 3, 3A,15A, 16 20.00%
Two Bids Received - Trade Item No's: 2A, 813, 9, 9C, 10, 15, 15B 23.33%
One Bid Received - Trade Item No's: 213, 5, 6, 7A, 8, 8C, 9A, 96, 9D, 14, 33.33%
No Bids Received - Trade Item No's: 4, 7, 76, 8A, 10A, 11, 12 23.33%
CONSTRUCTION MANAGEMENT AGREEMENT:
Section 4, Trade Contracts:
Construction of the Stadium shall be performed by trade contractors ("Trade Contractors"). Trade contracts
shall be executed between the Agency and each Trade Contractor on terms consistent with bids accepted by
the Agency. Construction Manager agrees to supervise all Trade Contractors hired by the Agency to ensure
that the Proiect is completed in accordance with the Drawings and Specifications
Page 5 of 6
0
Section 4.1, Bid Procedure:
Construction Manager shall develop bid specifications and assist the Agency in requesting and receiving bids
from the Trade Contractors. The Agency shall obtain at least three (3) bids for each pQrtion of the Project
to be performed by Trade Contractors. Each trade contract shall be awarded to the lowest responsible bidder
which also satisfies the goals and requirements established by Agency under its Minority and Women Business
Enterprise Program. Trade contracts shall be awarded by the Agency after all bids are reviewed by the
Agency and Construction Manager. In accordance with Labor Code Section 1771, Trade Contractors shall
receive the general prevailing rate of wage for services rendered to complete the project.
See Attached:
Construction Manager Scope of Work Exhibit "A" FOR DISCUSSION pURpOSES ONLY
Section 3, Construction Budget:
Prepare a construction Budget for Agency approval and update as development of the Drawings and
Specifications proceed. The Budget shall include, without limitation, the items set forth in Exhibit "C".
Construction Manager shall advise the Agency if the construction Budget shall not be met and recommend
corrective action. The target Budget for construction of the Stadium shall not exceed TEN MILLION DOLLARS
($10,000,000).
This Budget included $1.3± Million for the environmental clean-up and rough grading. Therefore, the Stadium
Budget per the Architectural drawings and specifications was $8.7± Million.
Stadium Cost Projection, September 21, 1995 (Rounded)
Construction Hard Costs $ 8,700,000
Environmental Clean-up 1 ,300,000
Over Budget 2,400,000
Soft Costs 2,000,000
Off-Site Improvements and Fees 1 ,700,000
Sub Total 16,100,000
Contingency 500,000
Sub Total 16,600,000
Deleted Items (Drawings & Specifications) 1 ,900,000
Sub Total 18,500,000
Land 1 ,700,000
Total $ 20,200,000
Page 6 of 6
09/25/95 09:10 '$213 68 '804 MUDGE ROSE / L.A Iff 01004/037
FOR a1SCUSSiC1,jRj
'
ORDINANCE NO.PURPOSES ONLY
AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING
SECTION 2.56.170 OF AND ADDING SECTION 2.56.176 TO THE SAN
BERNARDINO MUNICIPAL CODE RELATING TO CALLING AND CANCELLING
SPECIAL ELECTIONS AND TO DECLARE SUCH ORDINANCE TO BE AN EMERGENCY
ORDINANCE.
WHEREAS, the State of California has approved S.B. 100
which precludes the holding of any election by the voters to
approve the operation of card clubs on or after January 1, 1996;
and
WHEREAS, Section 2 . 56 . 170 of the San Bernardino Municipal
Code requires that at least ninety days elapse between the time a
special election is called and the time such special election may
be held, which requirement would not allow the City of San
Bernardino to hold a special election before January 1, 1996, which
therefore would prevent the citizens of the City of San Bernardino
from voting to approve the operation of card clubs; and
WHEREAS, the City of San Bernardino wishes to provide the
opportunity for its citizens to approve by special election the
operation of card clubs.
NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION 1. Section 2 .56. 170 of the San Bernardino
Municipal Code is hereby amended to read as follows :
"2 .56. 170 Special Elections
The Mayor and Common Council shall call a
special election to be held on a Tuesday, not
less than eighty-five (85) nor more than one
hundred thirty-five (135) days following such
call_ If an established election date set by
Section 10 of the Charter of the City of San
Bernardino or Elections Code 51000 falls
within that time period, such special election
LA01 \6345\25033.2 95573.1
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shall be held on that date. Two or more
special elections of the City may be combined
into one election. If the special election
held does not involve filling a vacancy on the
Council, the special election may be cancelled
prior to the established election date as
provided in Section 2 . 56.176. If the special
election is held to fill a vacancy on the
Council, it shall be called prior to an
anticipated vacancy or within thirty (30) days
after such vacancy. In such cases, the
election shall be held not less than eighty-
five (85) nor more than one hundred thirty-
five (135) days following such vacancy. Any
such special election so called shall be held
in compliance with the provisions of the
Charter and applicable ordinances of the City.
Unless the election is not held as provided in
Section 2 .56 .175, the candidate receiving the
plurality of votes cast at such special
election shall be elected to fill the
vacancy. "
SECTION 2 . Section 2 . 56.176 is hereby added to the San
Bernardino Municipal Code to read as follows :
"2 . 56 .176 Special Election for purposes other
LA01 \6345\25033.2 95573.1
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than filling vacancy in office; cancellation
If, by 5 P.M. on the 31st day before a
municipal election that does not involve
filling a vacancy on the Common Council, the
Mayor and the Common Council determine that
the purposes for holding such municipal
election are no longer applicable and that
holding such municipal election is no longer
necessary, the Mayor and the Common Council
may, at a regular or special meeting held
before the municipal election, direct that
such municipal election not be held.
The City clerk shall publish a notice of
the facts of why a municipal election is no
longer deemed necessary. Publication shall be
made pursuant to Section 6061 of the
Government Code in any newspaper of general
circulation as designated by the Clerk. "
SECTION 3 : This Ordinance is an emergency ordinance in
that the State has adopted S .B. 100, which precludes the holding of
an election to obtain voter approval for a card club on or after
January 1, 1996, which will deny the citizens of the City of San
Bernardino the opportunity to vote on such issue and that there are
serious financial implications which could result from such delay
and could therefore affect the public peace, health, safety,
LAN \6345\25033.2 95573.1
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comfort, convenience and general welfare of the City of San
Bernardino, its citizens and the general public, and the same shall
therefore take Effect and be in full force immediately upon the
final passage and adoption thereof, as provided in the City
Charter.
LA01 \6345\25033,2 95573.1
09/25/95 09:12 '8'213 68 804 MUDGE ROSE / L.A 0008/037
ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 2.56.170
OF AND ADDING SECTION 2.56.176 TO THE SAN BERNARDINO MUNICIPAL CODE
RELATING TO CALLING AND CANCELLING SPECIAL ELECTIONS AND TO DECLARE
SUCH ORDINANCE TO BE AN EMERGENCY ORDINANCE.
I HEREBY CERTIFY that the foregoing ordinance was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a meeting thereof, held on the
day of , by the following vote, to wit :
Council Members : AYES NAYES ABSTAIN ABSENT
City Clerk
of
The foregoing ordinance is hereby approved this day "
Mayor
City of San Bernardino
Approved as to form
and legal content :
City Attorney
By:
LA01 \6345\25033.2
95573.1
09/25/95 09:12 $213 08( '04 MUDGE ROSE / L.A 0 U009/037
The attached ordinance makes the following changes to the existing
San Bernardino Municipal Code:
(1) Amends §2 .56.170 so that special elections may be held
after 85 days from the call of the special election, as
opposed to the current requirement of 90 days. Such
amendment would allow for a special election that is
called on September 25, 1995 to be held on December 19,
1995 .
(2) Amends §2 , 56.171 so that the City may hold an all-mailed
ballot election for any issue, not just those pertaining
to vacancies on the Common Council .
(3) Adds §2.56.176 which provides the City with the ability
to cancel a called special election thirty-one days
before it is held.
The attached ordinance also contains urgency language to allow for
it to become effective immediately.
FOR p1's�
PIJ SION
LA01 \6345\25214.1 95573.1
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FOR DISCUs#%1 R
PURPOSES ORDINANCE NO. O
AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING
SECTIONS 2.56.170 AND 2.56.171 OF AND ADDING SECTION 2.56.176 TO
THE SAN BERNARDINO MUNICIPAL CODE RELATING TO CALLING AND
CANCELLING SPECIAL ELECTIONS AND TO DECLARE SUCH ORDINANCE TO BE AN
EMERGENCY ORDINANCE.
WHEREAS, the State of California has approved S.B. 100
which precludes the holding of any election by the voters to
approve the operation of card clubs on or after January 1, 1996;
and
WHEREAS, Section 2 . 56 . 170 of the San Bernardino Municipal
Code requires that at least ninety days elapse between the time a
special election is called and the time such special election may
be held, which requirement would not allow the City of San
Bernardino to hold a special election before January 1, 1996, which
therefore would prevent the citizens of the City of San Bernardino
from voting to approve the operation of card clubs; and
WHEREAS, the City of San Bernardino wishes to provide the
opportunity for its citizens to approve by special election the
operation of card clubs.
NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION 1. Section 2 .56 .170 of the San Bernardino
Municipal Code is .hereby amended to read as follows :
"2 .56 .170 Special Elections
The Mayor and Common Council shall call a
special election to be held on a Tuesday, not
less than eighty-five (85) nor more than one
hundred thirty-five (135) days following such
call . If an established election date set by
Section 10 of the Charter of the City of San
Bernardino or Elections Code §1000 falls
within that time period, such special election
shall be held on that date. Two or more
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special elections of the City may be combined
into one election. If the special election
held does not involve filling a vacancy on the
Council, the special election may be cancelled
prior to the established election date as
provided in Section 2. 56.176 . If the special
election is held to fill a vacancy on the
Council, it shall be called prior to an
anticipated vacancy or within thirty (30) days
after such vacancy. In such cases, the
election shall be held not less than eighty--
five (85) nor more than one hundred thirty-
five (135) days following such vacancy. Any
such special election so called shall be held
in compliance with the provisions of the
Charter and applicable ordinances of the City.
Unless the election is not held as provided in
Section 2 .56 .175, the candidate receiving the
plurality of votes cast at such special
election shall be elected to fill the
vacancy. "
SECTION 2. Section 2 .56.171 of the San Bernardino
Municipal Code is hereby amended to read as follows :
"2.56 .171 Special Elections; alternate
procedure
The Common Council may, as an alternative
LA01 \6345\25214.1 95573.1
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to the procedure outlined in Section 2 . 56 .170,
call a special election to be held on a
Tuesday, within the time limits set by Section
2 .56 .170 to be conducted wholly by mail
ballots. Such election shall be conducted in
accordance with the provisions of Section. 4100
et seq. of the Elections Code of the State of
California. "
SECTION 3 . Section 2.56 .176 is hereby added to the San
Bernardino Municipal Code to read as follows:
112 . 56. 176 Special Election for purposes other
than filling vacancy in office; cancellation
If, by 5 P.M. on the 31st day before a
municipal election that does not involve
filling a vacancy on the Common Council, the
Mayor and the Common Council determine that
the purposes for holding such municipal
election are no longer applicable and that
holding such municipal election is no longer
necessary, the Mayor and the Common Council
may, at a regular or special meeting held
before the municipal election, direct that
such municipal election not be held.
The City clerk shall publish a notice of
the facts of why a municipal election is no
longer deemed necessary. Publication shall be
LA01 \6345\25214.1 95573.1
09/25/95 09:14 $213 680 04 MUDGE ROSE / L.A 0 0013/037
made pursuant to Section 6061 of the
Government Code in any newspaper of general
circulation as designated by the Clerk. "
SECTION 4: This Ordinance is an emergency ordinance in
that the State has adopted S.B. 100, which precludes the holding of
an election to obtain voter approval for a card club on or after
January 1, 1996, which will deny the citizens of the City of San
Bernardino the opportunity to vote on such issue and that there are
serious financial implications which could result from such delay
and could therefore affect the public peace, health, safety,
comfort, convenience and general welfare of the City of San
Bernardino, its citizens and the general public, and the same shall
therefore take effect and be in full force immediately upon the
final passage and adoption thereof, as provided in the City
Charter.
LA01 \6345\25214.1 95573.1
09/25/95 09:14 $213 68C 04 MUDGE ROSE / L.A ® Z014/037
ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTIONS 2.56.170
AND 2.56.171 OF AND ADDING SECTION 2 .56.176 TO THE SAN BERNARDINO
MUNICIPAL CODE RELATING TO CALLING AND CANCELLING SPECIAL ELECTIONS
AND TO DECLARE SUCH ORDINANCE TO BE AN EMERGENCY ORDINANCE.
I HEREBY CERTIFY that the foregoing ordinance was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a meeting thereof, held on the
day of by the following vote, to wit:
Council Members: ,AYES NAYES ABSTAIN ABSENT
City Clerk
The foregoing ordinance is hereby approved this day
of ,
Mayor
City of San Bernardino
Approved as to form
and legal content:
City Attorney
BY=
LA01 \6345\25214.1 95573.1