HomeMy WebLinkAboutRS1- Economic Development Agency ECONOMIC DEVELOPMENT AGENCY Fly OF THE CITY OF SAN BERNARDINO
REQUEST FOR COMMISSION/COUNCIL ACTION
FROM: RONALD E.WINKLER SUBJECT: PATTON PARK-SOCCER
Development Director COMPLEX
DATE: August 15, 1996
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Synopsis of Previous Commission/Council/Committee Action(s):
On July 22, 1996,the Community Development Commission approved the project in concept,pending acceptable gap
financing and negotiations on the Joint Development Agreement. Staff was instructed to bring the item back on August
5, 1996.
On August 5, 1996,the Community Development Commission determined that the proposed financing plan was
acceptable;(2)direct staff to contact prospective lenders regarding financing and bring back a report;(3)that a
competitive bidding process supervised by the Director of Public Works be used.
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Recommended Motion(s):
(Mayor&Common Council)
(Community Development Commission)
MOTION: That the Mayor and Common Council and Community Development Commission,(1)approve the
Joint Development Agreement,lease and related documents and authorize their execution; and(2)
authorize staff to proceed with financing as proposed.
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Contact Person(s): Ronald E.Winkler/Adam Eliason Phone: 5081
Project Area(s): N/A Ward(s): Seven(7)
Supporting Data Attached: ® Staff Report ❑ Resolution(s) ® Agreement(s)/Contract(s)❑ Map(s)❑ Memorandum
FUNDING REQUIREMENTS: Amount: $3,269,036.00 Source: Park Funds/Bond Proceeds/Line of Credit
Budget Authority: nested L
SIGNATURE: C,
Administrator onald E.W. der,Director
Development
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Commission/Council Notes:
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REW:lag:08-19-07.CDC COMMISSION MEE A
MEETING DATE:
Agenda Item Number:
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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Patton Park-Soccer Complex
At the meeting of August 5, 1996,the Community Development Commission reviewed a report regarding financing for
the subject project together with a joint development agreement and lease document. Based upon that review the
Commission determined that project financing using the 201 North"E"Street building as security was acceptable and
directed staff to contact lenders regarding financing.
However,content of the development agreement was of some concern. Specific items at issue were:
• The need for a competitive bid process under the direction of the Public Works Department to construct
facilities.
• The appropriateness of a construction management or supervision fee to Empire&Associates.
• An appropriate level of compensation to Empire&Associates for packaging the CYSA lease commitment.
• Principals in Empire A/G Recreation,LLC.
• The extent of commitment to use local vendors.
Attached is a letter from Empire&Associates,Inc.,detailing proposal changes to the agreement in response to issues
discussed at the Commission meeting. Specific changes proposed include:
COMPETITIVE BIDDING
Empire agrees to a competitive bid process under direction of the Public Works Department. Empire would reserve the
right to match the lowest bid received by the City and gain contract award. Empire's guaranteed maximum bid of
$2,884,339 to build the soccer complex remains in place in the event no bids below that price are received through the
competitive process. Also,should a third party contractor be selected through competitive bid,the City at its discretion
has the right to hire Empire as construction supervisor for ten percent(10%)of the competitive bid cost. This would be
subject to a service agreement approved by Council/Commission once that decision is made.
COMPENSATION FOR CYSA LEASE
The amount paid to Empire&Associates was based on the value provided to the City by CYSA assuming annual
maintenance cost of the complex estimated at over$250,000 annually. Although further discussion between staff,
CYSA and Empire A/G,occured following the last Commission meeting regarding the level of compensation they feel
the$144,696 is warranted. Attached is their analysis of past negotiations and justification that the Commission
requested.
EMPIRE A/G RECREATION,LLC
As noted in the Joint Development Agreement,this is a newly formed Limited Liability Corporation comprised of
Empire&Associates,Inc.,David R.Willis,an individual,Don Regan,an individual and David E.Mlynarski,an
individual. Empire&Associates,Inc.,will guarantee performance of the new corporation.
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REW:lag:08-19-07.CDC COMMISSION MEETING AGENDA
MEETING DATE: 08/19/1996
n
Agenda Item Number: 5
ECONOMIC DEVELOPMENT AGENCY STAFF REPORT
Patton Park - Soccer Complex
August 13, 1996
Page Number-2-
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LOCAL VENDORS
As can be seen by the attached letter,CYSA has agreed to use up to fifty percent(50%)local vendors. Staff wishes to
note that CYSA is dependent upon concession revenue to pay facility operation and maintenance costs. Thus,discretion
on their part is necessary.
Since the last Commission meeting,staff has contacted a number of lenders and financial advisors regarding the
mortgage revenue financing. The attached matrix summarizes alternatives for your consideration. It is our
recommendation that use be made of the Agency's line of credit with Wells Fargo Bank. As can be seen from the matrix
this appears as the most cost effective and timely approach available. Although drawing on the line of credit requires
deposit of a like amount of Agency monies with Wells Fargo this should not be a problem since the Commission has
already earmarked$4 million in bond proceeds for reserves. Finally,the Agency preserves the ability to use future tax
increment growth,or other means to refinance the obligation at a later date.
It is recommended that the Commission:
1. Approve the Joint Development Agreement,lease and related documents as attached and authorize their
execution.
2. Authorize staff to proceed with financing as proposed.
RONALD E.WINKLER,Director
Development Department
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REW:lag:08-19-07.CDC COMMISSION MEETING AGENDA
MEETING DATE: 08/19/1996
Agenda Item Number: �N-
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August 8, 1996
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Mr. Tim Steinhaus
City of San Bernardino
Economic Development Agency
201 North E. Street, Third Floor
San Bernardino,CA 92401
Re: Patton Park Soccer Complex
Dear Tim,
In light of the August 5th, City Council meeting,Empire &Associates,Inc. on behalf of
CYSA-S and Empire Recreation A.G. would like to offer some insight to our position and some
concessions by our group with regards to the Joint Development Agreement for Patton Park
Soccer Complex.
First and foremost, is the issue of final approval for the project. Because of strict time
lines for future tournaments, CYSA-S must insist that complete approval or denial of the
p roject be accomplished at the August 19, 1996 Commission meeting. Including but not limited
to the financing package,business plan, lease and operating manuals as set forth. If approval is
not completed on or before this time, CYSA-S must find other venues for it's future events.
With regards to section 2 -G of the Joint Development Agreement,Empire will have the
ability to match the lowest responsible bid to complete the project, for the amount of the low
bid. In the event Empire cannot match the lowest responsible bid,Empire will receive a 10%
Supervisor fee based on the construction amount at the City of San Bernardino's option. This
allows Empire to complete the project without any additional costs to the City, unless the City
deems it in the best interest of the project to have Empire's forces oversee the project should a
different General Contractor be selected by the City.
Also, section 3.5 of the JDA regarding local vendors,the language and agreement can be
changed to reflect a 50% local participation in lieu of the 10% as stated.
I would like, for the record,to state CYSA-S and Empire Recreation A.G. intentions with
regards to becoming parties to the JDA and lease. Empire's participation in this agreement is
precedent to CYSA-S commitment to the Agreement. Empire's contributions include soliciting,
retaining and negotiating with CYSA-S and the City of San Bernardino to come to a mutually
12265 World Trade Drive,Suite H • San Diego,CA 92128 • (619)675-1003 FAX(619)675-1006 <
LIC.589388
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Page two
beneficial lease and operating agreement. Furthermore,Empire will guarantee construction,
design, engineering, CYSA-S specification compliance and scheduling construction at a cost not
to exceed the amount stated in the agreement. CYSA-S in turn, will guarantee sanctioned
participation as stated, maintain the complex,provide insurance for participants and spectators,
manage the facility and maintain a reserve fund throughout the life of the lease. Again,I will
reiterate Empire& CYSA-S intentions to this agreement are mutually inclusive, should either
party be excluded, all of the benefits above will be void and shall not be part of this agreement.
We, believe this agreement has great benefit to all panes involved and hope it can and
will proceed without further delay. I also would like to state community support of this project
is unparalleled in my development career,the correspondence and calls we have received in
support of this project is unbelievable. Please do not hesitate to call if you have any questions or
concerns.
Sincerely,
Empire&Associates, Inca CYSA-S
vid R. Willis, President Ray Hot W,1, CYSA-S Tfesident
cc: Councilwoman Norine Miller
Don Regan,KOND
Adam Eliason,EDA
Roger Hardgrave, City of San Bernardino
Tim Sabo, Sabo& Green
Ron Winkler,EDA
Annie Ramos,Parks and Recreation
FILE No. 494 08/15 '96 16:41 I D:K 0 N & D 619 793 8340 PAGE 2
EMPIRE A/G RECREATION, LLC
12265 WoRr ML4i eDmve,Sums H•S,w Dum,CAMWOHA 92128•Pit:(619)67S-1003 FAx:(619)667-1006
August 15, 1996
Honorable Tom Minor
Mayor of City of San Bernardino
Honorable Edward Negrete Councilmember
Honorable F.J.Curtin,M.D.Councilmember
Honorable Rita Arias Councilmember
Honorable David Oberhelman Councilmember
Honorable Jerry Devlin Councilmember
Honorable Betty Anderson Councilmember
Honorable Norine Miller Councilmember
300 North"D"Street
San Bernardino,CA 92418
Re: Patton Park(aka San Bernardino Municipal Soccer Sports Park)
Dear Mayor Minor and Councilmembers:
In response to requests for clarification,this letter explains the various calculations and valuations
considered in establishing the amount of an appropriate real estate commission for Empire's work in
creating,negotiating,and procuring the Patton Park proposal now before the City.
HISTORY AND EVOLUTION
To put this minor part of the overall transaction in proper perspective,a brief introduction is appropriate.
In May 1995,while this Company's partners were in the EDA conference room on another matter,we
observed a several hour grilling by then councilman Hernandez of various staff persons on the problems
created by and money wasted on"Arden/Guthrie". After the meeting,with the other councilpersew and
staff in attendance,we begin an informal brainstorming of what could be done to change the character of
the neighborhood and at the same time staunch the City's six figure annual cash down-the-drain losses.
Drawing on our collative experiences,we(including my partner Dave Willis'father who has been in the
home building business since the end of World War II)quickly abandoned any idea of trying to improve the
quality of the housing because this approach has never worked anywhere else. Next we tried several
conmzercial ideas,but none fit,particularly in light of recent experiences on and around Highland Avenue.
Empire AIG's consensus was inescapable;the only civic,economic,and permanent solution would be to
create something brand new to start the area(and perhaps a whole segment of the City)in another
direction.
WHY NOT A MAJOR SPORTS(PARTICIPATION,NOT SPECTATOR)COMPLEX,
ANCHORED BY A MAGNET ACTIVITY???
n, 1
FILE No. 494 08/15 '96 16:42 I D:K 0 N & D 619 793 8346 PAGE 3
Mayor Minor and Councilmembere
April 13, 1996
Page 2
Consequently,over the uoxt few months,Empire AG,without cost to or support(other than staff
conferences)ftm the City,tried many mixes and concepts(soccer;softball;sand volleyball;inlino skating;
roller hockey;water park;etc.). During this time Empire imported representatives from these sports and
sponsored and arranged several working sessions at the EDA.
During this dialogue the availability of Patton Park emerged. For two reasons the focus shifted:
1. Patton Park's size,configuration,and accessibility make it&ideal soccer site;buildable at
minimum cost.
2. Under the impetus of deed restrictions("use it or lose it"by 1999),the City could use the same
dollars to accomplish several goals with one imaginative stroke.
C,Y5A-South's Participation
Work then began in interest with the focus on soccer.Drawing on our extensive experience with the United;
States soccer community at local,regional,national and international levels,Dave Willis,Dave Mylanarski
and I each put our knowledge of the infrastructure of the sport and contacts within the soccer community to
work.
Together we were able to obtain a Southern California soccer community interest in this project and focus
on the Inland Empire as the ideal location. Empire presented(and vigorously advocated)the City of San
Bernardino as 1k City within the Inland Empire,because,we urged,it has the best combination of
resources,imagination.and timing. We suggested that CYSA-South aauld be the City's partner in this
innovative endeavor.
After an all day(Sunday)field trip organized by Empire and attended by all of CYSA-South's Board,all
parties were enthusiastically determined to press ahead.
The Joint Venture Agreement,hammered out during the ensuing months is the result. Empire and CYSA-
South,together,present it for your approval.
Con
This presentation requires reality,not humility. Empire AG is not merely a yenta,but the creator and
catalyst. CYSA-South is now a ready,willing and able joint venture participant. Recognition should be
given and compensation measured accordingly. The attached memo detalls the alternatives considered and
method used in setting this computation.
Very truly yours,
EMPIRE A!G RECREATION,
By: �aml-r J/J
J. Me er
cc: CYSA-South
Ann: Raymond P.Horspool,Jr.,President
�.roereu,strhwm�kdou
FILE No. 494 08215 '96 16:42 I D=K 0 N D 619 793 8340 PAGE 4
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EMPIRE A/G RECREATION, LLC
Patton Park
Alternative Measures of Compensation
From the beginning we at Empire understood that,because of the contingent nature of our efforts,time,
company resources,and costs advanced were completely at risk. Only when,after the several mgnths'
discussions had galvanized sufficient interest in CYSA-South to make it a participant iu the project,did
we presmt a compensation package.
Early this year,therefore,after reviewing with staff several measures by which compensation could be
calculated,we presented a proposal requesting a$250,000 commission payable,as are all commercial real
estate commissions,on execution of the contract(the Joint Venture Agreement).
While not disagreeing with the methods by which compensation could be calculated,Staff suggested that
we sharpen our pencils and cut the commission back. For reasons other than economic,we decided to do
so,and also,to accommodate the budget,to accept payment in three increments.
The alternative measures of compensation considered discussed are summarized below. To put the
summary in context,attached is a copy of one of the United States most prominent commercial real estate
brokerage companies,COLLIERS ILIFF THORNE'S Schedule of Sales and Lease Commissions.
References in the following summary arc to this Schedule.
1. JOINT VENTURE
More than anything else,this effort(project),is a joint ventures as reflected by the contributions of the three
parties and the form of the basic agreement.
The applicable reference for 4 joint venture is the second paragraph of item A in the attached Schedule.
Using this formula:
Total land 50 acres
P,Qt&a Land Valuc,aRor dovclopmont into tho Conscrvntivoly,S4.00M.
proposed soccer complcx
Total Developed land value $174,000 per acre,$8,700,000 total
Commission 3%of the land value
PAYABLE ON EXECTMON OF THE
JOINT VENTURE AGREEMENT
5435.000
��� f
FILE No. 494 08/15 '96 16:43 I D:K 0 N 8 D 619 793 8340 PAGE 6
2. STRAIGHT LEASE-SCHEDULE B
If the transaction were to be considered a straight lease,rent could be correctly calculated by taking into
account the maintenance payments to be made by CYSA-South(estimated at$250,000 per year for 20
years), 18a a conservative estimate of the additional tax revenues which the City would receive over the 20
year period(5220,000 per year or$4,400,000 NET NEW GENERAL.FUND REVENUES).
Using the more conservative of the two lease schedules set out under paragraph B(Gross Lease),and
combining lease payments and additional tax revenues as the truest measure of actual benefit to the City,
the commission would be approximately.............. .._ S310-00
3. PERCENTAGE RENTAL-SCHEDULE B-7
Under this method rent is calculated as under a straight lease and then,after the third year,an additional
3%of the increase over the basic amount is calculated,and paid in advance. Under this formula the
commission payable under alternative 2(Straight Lease)above could only increase.
S310000++
4. FINDER
Another way to negotiate for the maximum fees payable would have been to equate Empire's services to
those of a finder. There is no standard other than by reference to the total values involved and negotiation
by which to set finder's foes. Consequently,it was suggested early on that a finder's fee formula would be
inappropriate.
This measurement is inappropriate for other reasons. By definition(Icgal and in the marketplace),a finder
is one whose sole function is to introduce the parties and then step aside. Negotiations,services necessary
to accomplish the goal,and similar items would be outside of and in addition to any finder's fee.
Moreover,finders are not licensed. Here,each of Empire's principals is licensed. Empire was not only the
procuring cause,but also a key element participating in the internal CYSA-South discussions,the Joint
Venture Agreement negotiations,and,most significantly,lending its expertise as a general contractor and
soccer field builder.
5. PROFESSIONAL SERVICES RENDERED;TIME SPENT; COSTS ADVANCED
Another way to measure reasonable compensation would be to cumulate the individual and company
professional services rendercd,including staff time devoted to the project,and costs advanced
Briefly,a calculation using this measure would approximate the following:
indent
"Donald J. Rcgan P/C,time spent from inception(May,JL95}through anticipated execution of the
Joint Venture Agreement and all exhibits.
345 hours x$250 $86,250
Costs(phone,fax,copy,T&E;
financial projections and consultants) $7,500
Total $93,750
a �
FILE No. 494 08x15 '96 16=44 ID=K 0 N & D 619 793 8340 PAGE 7
Empire 8t Associates,Inc.
Consulting services(Willis)
450 hours x$100 $45,000
Staffpayn=t,expenses advanced
(estimate without charging anything
to G&A) $30,000
Total $75.000
Mapco
Engineering and Consulting Services
(Mylanarski)
220 hours x$100 $22,000
Renderings,costs advanced,phone,
fax,copy,T&E $12.000
Total $34,000 ,
GRAND TOTAL 5202,750 +
•To this amount would be added a premium,(typically 33 1/3%)to reflect the
risk(contingent nature of the services provided and costs advanced),
6. PAYMENT OF EARNED COMMISSIONS
Using any measure of compensation,commissions are paid immediately on execution and delivery of the
basic document(Joint Venture Agreement).
7. CALCULATION AND NEGOTIATION OF COMMISSION HERE
The pertinent measures suggest a commission ranging from$435,000 to$202,750,payable on signing. To
be conservative,however,and in response to pertinent suggestions,and requests,the measure chosen was a
straight lease using the lower commission schedule(Net lease)and only CYSA-South's maintenance
payments to equate to rent. Neither additional revenues to the City's General Fund nor the certain decrease
in infrastructure and keep-the-peace Arden/Guthrie expenditures were considered. We then agreed to cut
the commission in half,resulting in a final figure of$155,000.
At the time these negotiations were concluded,however,calculations were made on then estimated lease
payments,revenues,and costs,so a non-rounded off amount(S 144,696)was the ultimate amount
designated. Recently,in response to further requests,and to accommodate the budget,we agreed to accept
payment in 3 installments. The Joint Venture Agreement,as signed,now reflects this commission and time
of payment.
Thank you.
RECORDING REQUESTED BY:
THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
SABO & GREEN,
A Professional Corporation
23801 Calabasas Road, Suite 1015
Calabasas, California 91302-1595
(Space Above for Recorder' s Use)
JOINT DEVELOPMENT AGREEMENT
(Patton Park Recreational Facility)
By and Among
THE CITY OF SAN BERNARDINO,
THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
EMPIRE A/G RECREATION, LLC
TABLE OF CONTENTS
Pae
Section 1 . Public Purpose . . . . . . . . . . . . . . . . . 4
Section 2 . Empire ' s Obligations . . . . . . . . . . . . . . 4
Section 3 . City' s Obligations . . . . . . . . . . . . . . . 6
Section 4 . Agency' s Obligations . . . . . . . . . . . . . . 8
Section 5 . Certificate of Completion . . . . . . . . . . . 8
Section 6 . Enforced Delay; Extension of Time . . . . . . . 9
Section 7 . Sales or Transfer of Rights Hereunder . . . . 10
Section 8 . Notice of Sales and Transfer . . . . . . . . . 10
Section 9 . Local, State and Federal Laws . . . . . . . . 10
Section 10 . Plans and Specifications . . . . . . . . . . . 11
Section 11 . Events of Default . . . . . . . . . . . . . . 11
Section 12 . Remedies . . . . . . . . . . . . . . . . . . . 12
Section 13 . Obligation to Obtain Financing . . . . . . . . 13
Section 14 . Notices . . . . . . . . . . . . . . . . . . . 13
Section 15 . Applicability of Laws; Dispute Resolution 15
Section 16 . Obligation to Refrain from Discrimination 16
Section 17 . Form of Discrimination and Nonsegregation 16
Section 18 . Indemnification . . . . . . . . . . . . . . . 17
Section 19 . Inspection of Books . . . . . . . . . . . . . 17
Section 20 . Insurance . . . . . . . . . . . . . . . . . . 18
Section 21 . Successors and Assigns; Assignment . . . . . . 19
Section 22 . Entire Agreement; Amendment . . . . . . . . . 19
Section 23 . Severability . . . . . . . . . . . . . . . . . 19
Section 24 . Section Headings . . . . . . . . . . . . . . . 19
Section 25 . Meaning of Terms . . . . . . . . . . . . . . . 19
Section 26 . Effective Date of Agreement; Execution; Term 20
Attachments
EXHIBIT "A" - Legal Description of the Property
EXHIBIT "B" - Scope of Development
EXHIBIT "C" - Lease
EXHIBIT "D" - Operations Manual
EXHIBIT "E" - Schedule of Performance
EXHIBIT "F" - Certificate of Completion
EXHIBIT "G" - Construction Cost Budget
SBEO/0001/DOC/3067.14
8/14/96 3:00 ew
JOINT DEVELOPMENT AGREEMENT
(Patton Park Recreational Facility)
This Joint Development Agreement ("Agreement" ) is entered
into this day of August, 1996, by and between the CITY OF
SAN BERNARDINO, a municipal corporation ("City") , THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and
politic ( "Agency" ) , and EMPIRE A/G RECREATION, LLC, a California
Limited Liability Corporation ( "Empire" ) , comprised of Empire &
Associates, Inc . , a California Corporation, David R. Willis, an
individual, Donald J. Regan, an individual, and David E. Mlynarski,
an individual .
RECITALS
WHEREAS, the City previously acquired a fifty (50) acre
parcel of real property ( "Property" ) from the State of California
("State" ) located in the northeast portion of the City near the
Highway 30 Highland Avenue Exit and commonly known as Patton Park,
as legally described in Exhibit "A" , attached hereto and
incorporated herein by this reference; and
WHEREAS, the Property is under the responsibility of the
City Parks, Recreation and Community Services Department ( "Parks
Department" ) ; and
WHEREAS, portions of the Property are currently utilized
as a community garden; and
WHEREAS, the City' s acquisition of the Property was
conditioned inter alia upon the City' s promise to develop the
Property into a public park and recreational facility, and upon the
City' s promise to apply funds received from a sale of the Property
to recreational facilities in the City; and
WHEREAS, Empire intends to develop the Property by
undertaking the removal of the existing community garden which is
currently located on the Property, the removal of existing
structures (including any asbestos contained therein if necessary)
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from the Property, and the construction of a public recreational
facility on the Property consisting of sixteen (16) soccer fields
with ancillary buildings, parking and related landscaping
( "Improvements" ) , in accordance with the Scope of Development,
attached hereto as Exhibit "B" and incorporated herein by this
reference ( "Project" ) ; and
WHEREAS, it is anticipated that in addition to the sixteen
(16) soccer fields described above, the public recreational
facility will consist of two (2) soccer fields and parking, located
in the Emmerton Elementary School adjacent to the Property, and
which the City will use its best efforts to cause the
San Bernardino Unified School District ( "School District" ) to make
available on an as needed basis; and
WHEREAS, the City intends to assist in the development of
the Project by directly financing or causing to be financed through
the Agency the costs incurred by Empire to construct and install
the Improvements, via: (i) the allocation of Patton Park Recreation
Funds in an amount not to exceed $500, 000 . 00; (ii) the allocation
of the proceeds of previously issued Tax Allocation Bonds ( "TABs" )
in an amount not to exceed $1, 000, 000 . 00; and (iii) the allocation
of other available City funds, or issuance of a new debt obligation
in the form of Lease Revenue Bonds, Mortgage Revenue Bonds, or
Certificates of Participation, in an amount not to exceed
$1; 500, 000 . 00, including capitalized interest, underwriter' s
discount, and cost of issuance ( "New Debt Obligation" ) ; and
WHEREAS, Empire further intends to obtain the California
Youth Soccer Association-South' s ( "CYSA-S") nominee ' s commitment to
enter into a twenty (20) year Lease, the effective date of which
shall be no later than August 1, 1997 ( "Lease" ) , relative to the
Project for the purposes of conducting the CYSA-S ' s annual
recreational and competitive league programs and tournaments,
approving the City' s issuance of recreational use permits to
organized groups, persons, firms, corporations or societies whose
use in CYSA-S' s nominee' s opinion will not damage the Property, and
operating and maintaining the Property in accordance with the terms
and conditions set forth in the Lease, attached hereto as Exhibit
"C" and incorporated herein by this reference; and
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WHEREAS, CYSA-S' s nominee shall have the right to conduct
its annual recreational and competitive league tournaments on the
Property on an exclusive basis; and
WHEREAS, CYSA-S ' s nominee shall have the right to conduct
its annual recreational and competitive league programs on the
Property on a not to exceed sixty-four (64) hours per seven (7) day
week basis, to be determined by CYSA-S ' s nominee in its sole
discretion; and
WHEREAS, during such time as CYSA-S ' s nominee is not
conducting its annual recreational and competitive league programs,
the Property shall remain open for public access (including,
without limitation, organized groups, persons, firms, corporations
or societies who have obtained recreational use permits from CYSA-
S' s nominee on a first come first serve, permit only basis, to be
mutually determined by the Parks Department and CYSA-S' s nominee;
and
WHEREAS, the Property is in public ownership and public
access to the Property may create the need for the establishment of
rules of conduct and other regulatory measures; and
WHEREAS, the issuance of recreational use permits to
organized groups, persons, firms, corporations or societies other
than CYSA-S' s nominee shall be in accordance with the procedures
used by the Parks Department in connection with other City parks,
and all users of the Property other than CYSA-S' s nominee shall
comply with the provisions of Chapter 12 . 80 of the City' s Municipal
Code relative to public parks and recreational facilities ( "Chapter
12 . 8011 ) ; and
WHEREAS, the Operations Manual, attached hereto as
Exhibit "D" and incorporated herein by this reference, which has
been developed and jointly agreed upon by the Parks Department and
CYSA-S' s nominee, establishes criteria relative to the operation of
the Property by CYSA-S' s nominee, including without limitation, the
criteria defined in Chapter 12 . 80; and
WHEREAS, inasmuch as excessive use of the turf areas of the
Property may cause damage or eradication of the turf, the parties
to this Agreement and the Exhibits hereto have determined that a
turf management program which addresses usage shall be jointly
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developed and jointly agreed upon by the Parks Department and CYSA-
S' s nominee; and
WHEREAS, the City has determined that the development of
the Property in accordance with this Agreement shall benefit the
City by reducing blight within a portion of the City, increasing
tax revenues for the City, decreasing the cost to the City of
providing general services, fulfilling the City' s obligation to
develop the Property into a public park and recreational facility,
and creating employment opportunities for approximately ten (10)
persons; and
WHEREAS, Empire has demonstrated its ability to complete
the Project to the City' s satisfaction, and CYSA-S intends to hold
its programs and events on, and operate and maintain the Property
for a period of twenty (20) years .
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS :
Section 1 . Public Purpose . The City and Empire agree
that completion of the Project shall be undertaken for the common
benefit of the parties hereto and the residents of the City to
reduce blight, increase tax revenues, decrease the cost of
providing general services, fulfill the obligation to develop the
Property into a public park and recreational facility, and create
employment opportunities within a portion of the City. Therefore,
completion of the Project will be of benefit to the City and shall
improve, upgrade, and revitalize, both economically and physically,
a portion of the City.
Section 2 . Empire ' s Obligations .
A. Except as otherwise provided herein, Empire shall cause
the removal of the existing community garden which is currently
located on the Property, the removal of existing structures
(including any asbestos contained therein) from the Property,
including without limitation, the storage compartments, and the
construction and installation of all Improvements comprising the
Project, not to exceed the Construction Cost Budget, attached
hereto as Exhibit "G" and incorporated herein by this reference .
B. Empire shall pay any and all fines that may be levied
against the Property or the Project as a result of Empire' s actions
or omissions .
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C. Empire shall complete the removal of the existing
community garden which is currently located on the Property, the
removal of existing structures (including any asbestos contained
therein if necessary) from the Property, and the construction and
installation of the Improvements on the Property, no later than May
1, 1997, subject to any extensions of time mutually agreed upon in
writing by the parties hereto.
D. Empire and its officers, contractors, agents and
representatives shall keep the Property free and clear from, and
shall indemnify, defend and hold the City and the Agency harmless
against, any and all liens, claims, and demands for work performed,
materials furnished, or operations conducted on the Property at all
times during which Empire is performing its obligations as set
forth in Section 2 .A above . Empire' s agreement to indemnify,
defend and hold harmless shall also include incidental or
consequential damages to the City or the Agency.
E. Empire shall also obtain CYSA-S ' s nominee ' s commitment
to enter into the twenty (20) year Lease of the Property for the
purposes of holding CYSA-S ' s annual recreational and competitive
league programs and tournaments thereon, approving the City' s
issuance of recreational use permits to organized groups, persons,
firms, corporations or societies whose use in CYSA-S' s nominee' s
opinion will not damage the Property, and operating and maintaining
the Property in accordance with the terms and conditions set forth
in the Lease .
F. A substantial portion of the consideration for the City
and the Agency to assist in the development of the Property is the
agreement of Empire to complete the Project in accordance with the
Scope of Development, including the removal of the existing
community garden which is currently located on the Property, the
removal of existing structures (including any asbestos contained
therein) from the Property, including without limitation the
storage compartments, the construction and installation of the
Improvements on the Property, no later than May 1, 1997, and the
commencement of CYSA-S ' s nominee ' s Lease of the Property no later
than August 1, 1997 . Empire hereby acknowledges that neither the
City' s obligations described in Section 3 , nor the Agency' s
obligations described in Section 4 shall arise unless and until
CYSA-S ' s nominee has executed the Lease . Removal of the existing
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community garden which is currently located on the Property,
removal of existing structures (including any asbestos contained
therein) from the Property, execution of the Lease, and
construction and installation of the Improvements on the Property,
shall be performed within the times specified in the Schedule of
Performance, attached hereto as Exhibit "E" and incorporated herein
by this reference, subject to any extensions of time agreed upon by
the parties hereto. Completion of the Project (except for any
normal and customary tenant improvements and minor "punch list"
items) shall be evidenced by the issuance of the Certificate of
Completion, attached hereto as Exhibit "F" and incorporated herein
by this reference.
G. Empire shall in conjunction with CYSA-S prepare the
Project for bidding in accordance with the Rules for Bidding
(Exhibit "D" to the Lease) . Empire shall submit a bid in the
amount of the hard construction costs ($2, 884, 339 . 50) set forth in
the Construction Cost Budget . In the event Empire is the lowest
responsible bidder, Empire : (i) guarantees that it will construct
and install the Improvements on the Property to CYSA-S' s
satisfaction in accordance with the Construction Cost Budget, and
for the amount of the hard construction costs ($2 , 884 , 339 . 50) set
forth therein; and (ii) waives any and all protections to which it
would otherwise be entitled under the Public Contracts Code . In
the event Empire is not the lowest responsible bidder, Empire shall
have the right to match the lowest responsible bid. In the event
Empire does not elect to match such bid, the City at its sole
option may award the Project to the lowest responsible bidder and
administer the Project as a City Public Works Project, or pay
Empire a supervisorial fee up to a maximum of 100 of the lowest
responsible bid, not to exceed $288, 433 . 95 .
Section 3 . City' s Obligations .
A. Subject to the terms and conditions set forth herein,
and upon CYSA-S ' s execution of the Lease, the City hereby agrees :
(i) to assist in the development of the Project by directly
financing or causing to be financed through the Agency the costs
incurred by Empire to install and construct the Improvements via
the allocation of Patton Park Recreation Funds in an amount not to
exceed $500, 000 . 00, the allocation of previously issued TABS in an
amount not to exceed $1, 000, 000 . 00, and the allocation of other
available City funds, or the issuance of the New Debt Obligation;
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(ii) that in the event the City determines it appropriate to issue
the New Debt Obligation, the City will consider using Kinsell,
O'Neal, Newcomb, & DeDios as the underwriter of such New Debt
Obligation; and (iii) to pay Empire a real estate commission in an
amount not to exceed One Hundred Forty Four Thousand Six Hundred
Ninety Six Dollars ($144, 696 . 00) as follows : (i) one-third (1/3) of
the commission shall be paid upon execution of this Agreement so as
to allow Empire to prepare the Project for bidding; (ii) one-third
(1/3) of the commission shall be paid upon the City' s execution of
the Certificate of Completion, CYSA-S' s approval of the
construction and installation of the Improvements on the Property,
and the effective date of the Lease; and (iii) one-third (1/3) of
the commission shall be paid one year after the effective date of
the Lease .
B . The City shall establish a budget, sources of
financing, and a financing plan for the Project .
C. The City shall take all necessary steps required to
terminate any and all interests in the existing community garden
which is located on the Property.
D. The City shall cooperate with Empire in obtaining
necessary land use permits, zone changes and specific or general
plan amendments as may be required to develop, construct and
operate the Project on the Property.
E. The Parks Department and Engineering Department shall
cooperate with Empire in the review and approval process relative
to the Property, including without limitation, landscape and sports
facilities plans .
F. The Parks Department shall cooperate with CYSA-S' s
nominee in developing and agreeing upon a turf management program
which addresses the appropriate extent of usage of the turf areas
of the Property.
G. The City shall enter into the Lease with CYSA-S ' s
nominee . The Director of Public Works/City Engineer shall conduct
the public bidding process in accordance with the Rules for
Bidding.
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H. The City shall use its best efforts to obtain the
lowest rates available for water and electricity, and its best
efforts to ensure that such rates are maintained during the Term
and the Extended Term of the Lease (as defined therein) .
I . The City shall use its best efforts to cause the School
District to make available on an as needed basis two (2) soccer
fields and parking, located in the Emmerton Elementary School
adjacent to the Property.
J. The City hereby represents that to the best of its
present understanding, the total amount of fees which are set forth
in the Construction Cost Budget, constitutes the total fees to be
collected by the City with respect to the Property and the Project .
K. Any fees, assessments, exactions or requirements
imposed by the City shall be the responsibility of the City, which
may defer or waive such fees, assessments, exactions or
requirements . However, in no event shall such deferral or waiver
serve to prevent or inhibit construction of the Project . Any fees,
assessments, exactions or requirements imposed by any other
municipality or by any utility company, including without
limitation, Southern California Edison, Pacific Bell or the East
Valley Water District shall not exceed the amount of Connection
Fees as set forth in the Construction Cost Budget .
Section 4 . Agency' s obligations . Subject to the terms
and conditions set forth herein, and upon CYSA-S ' s nominee ' s
execution of the Lease, the Agency shall cooperate with Empire in
expediting the completion of the Project by providing an
appropriate Agency staff liaison to assist Empire with respect to
planning, landscaping and architectural matters, and in order to
establish a timetable for City and Parks Department processing and
approval of plans and specifications . In performing its
obligations, the Agency shall consider all possible impacts on the
Emmerton Elementary School resulting from the proposed use of the
Property, and in light of the fact that the Emmerton Elementary
School is a year round school .
Section 5 . Certificate of Completion. The City shall
promptly furnish and provide a Certificate of Completion to Empire
following (i) compliance by Empire with the terms of this
Agreement; (ii) completion of the Project in accordance with all
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applicable laws, ordinances, rules and regulations, including the
City' s Municipal Code; (iii) receipt by the City of a written
request from Empire for a Certificate of Completion; and (iv)
presentation to the City of a copy of a Certificate of Occupancy
for the Property. The Certificate of Completion shall certify that
removal of the existing community garden which is currently located
on the Property, removal of existing structures (including any
asbestos contained therein if necessary) from the Property,
including without limitation, the storage compartments, and
construction and installation of the Improvements on the Property
required by this Agreement, has been completed in accordance with
the City' s Municipal Code to the satisfaction of the City (except
for any normal and customary tenant improvements and minor "punch
list" items) . Upon issuance of the Certificate of Completion by
the City, each of the covenants, restrictions, warranties, and
conditions contained in this Agreement relating to removal of the
existing community garden which is currently located on the
Property, removal of existing structures (including any asbestos
contained therein) from the Property, including without limitation,
the storage compartments, and installation and construction of the
Improvements on the Property, shall be deemed satisfied and
terminated (except for any normal and customary tenant improvements
and minor "punch list" items) .
Section 6 . Enforced Delay; Extension of Time.
Performance by Empire to complete the Project no later than May 1,
1997 shall not be deemed to be in default and such performance
shall be extended when delays are due to: acts of God; strikes,
lockouts or other industrial disturbances; delays in obtaining
materials or labor which are through no fault of Empire, shortages
of materials or labor or acts of public enemies; orders of any kind
of the Government of the United States or of the State of
California or any department, agency, political subdivision, court
or official of any of them, or any civil or military authority;
insurrections; riots; epidemics; landslides; lightning;
earthquakes; volcanoes; fires; hurricanes; tornadoes; storms;
floods; washouts; droughts; arrests; restraint of government and
people; civil disturbances; explosions; breakage or accident to
machinery; partial or entire failure of utilities; or any cause or
event not reasonably within the control of Empire when Empire is
unable, in whole or in part, to perform any one or more of its
obligations contained in this Agreement . Empire shall, for the
time of said delay or such longer period as shall be agreed upon in
- 9 -
writing by the City not be deemed in default of this Agreement
pursuant to Section 11 herein during the delay causing Empire ' s
inability to continue its performance hereunder.
Empire shall make all reasonable efforts to remedy the
cause or causes preventing Empire from performing their obligations
hereunder; provided that the settlement of strikes, lockouts, and
other industrial disturbances shall be entirely within the
discretion of Empire who shall not be required to settle strikes,
lockouts, and other industrial disturbances by acceding to the
demands of the opposing party or parties when it is in the judgment
of Empire that such course would be unfavorable to Empire .
The completion of the Project by Empire and the operation
and maintenance of the Property by CYSA-S ' s nominee shall assist
the City in complying with its obligation to the State to develop
the Property into a public park and recreational facility.
Therefore, Empire shall take all reasonable steps to complete the
Project no later than May 1, 1997 . Completion of the Project shall
mean the date when the City approves the issuance of a Certificate
of Completion, provided that such approval shall not be
unreasonably withheld.
Section 7 . Sales or Transfer of Rights Hereunder. Empire
hereby covenants and agrees not to sell, transfer, assign or
otherwise dispose of its rights under this Agreement without
obtaining the prior written consent of the City.
Section 8 . Notice of Sales and Transfer. Notwithstanding
any provision herein, Empire shall notify the City in writing of
any sale or transfer of its rights under this Agreement prior to
the consummation of such sale or transfer. Such notice shall
contain the name, address, and formal description of the entity so
acquiring such rights .
Section 9 . Local . State and Federal Laws . Empire shall
carry out the Project and all related activities on the Property in
conformity with all applicable laws, including federal and state
labor standards, prevailing wage requirements and public bid
procedures . Empire and its contractors, successors, assigns,
transferees, and lessees are not waiving their rights to contest
any such laws, rules, standards or procedures . Unless otherwise
exempt pursuant to state or federal law, Empire, its contractors,
- 10 -
and subcontractors shall pay prevailing wages to anyone employed in
connection with completion of the Project .
Section 10 . Plans and Specifications . Empire agrees that
the plans and specifications prepared for the grading and
preparation of the Property, including without limitation the
landscape and sports facilities plans, shall be submitted to the
Engineering Department or other appropriate department of the City
for approval prior to commencement of construction. Said plans and
specifications shall, in all respects, be consistent with this
Agreement, and all appropriate plans or building standards of the
City. In the event said plans and specifications are not
reasonably acceptable to the City, although in compliance with this
Agreement, Empire shall amend or modify said plans and
specifications or submit such further or additional plans and
specifications as may reasonably be required by the Engineering
Department or other appropriate department of the City. The plans
and specifications approved by the City shall not be amended or
modified in any material respect subsequent to such date of
approval without the prior written consent of either or both the
City or the Agency, as applicable . The City shall use its best
efforts to assure that the approvals set forth in this Section are
not unreasonably withheld or delayed.
Section 11 . Events of Default . "Event of Default" means
any one of the following events regardless of : (i) the reason for
such Event of Default and (ii) whether such Event of Default is
voluntary, involuntary or by operation of law pursuant to any
judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body superior to
the City or the Agency.
(a) Default in the performance of this Agreement or breach
of any provision contained herein by Empire and continuance of such
default or breach for a period of thirty (30) calendar days after
the City or the Agency has given notice to Empire, as specified in
Section 14 herein, requiring such Event of Default to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(b) The entry of a decree or order by a court having
jurisdiction adjudging Empire bankrupt or insolvent or approving,
as properly filed, a petition seeking a reorganization, or relief
under the Federal Bankruptcy Act or any other applicable federal or
- 11 -
state law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official, or ordering the winding up
or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of thirty (30)
calendar days; or
(c) The institution by Empire of proceedings to be adjudged
bankrupt or insolvent or the consent by either Empire to the
institution of bankruptcy or insolvency proceedings against it, or
the filing by Empire of a petition, answer or consent seeking
reorganization or relief under the Federal Bankruptcy Act or any
other applicable federal or state law, or the consent by Empire to
the filing of any such petition or appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar
official, or the making of an assignment by Empire for the benefit
of its creditors, or the admission by Empire in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by Empire in furtherance of any such
action.
Section 12 . Remedies .
A. Reimbursement to City. In the event that Empire fails
to perform any of its obligations or breaches any of the covenants
contained herein subject to the acts of force majeure as provided
in Section 6 herein, Empire shall, at the option of the City and
upon demand by the City to Empire, immediately reimburse the City
amounts paid to Empire since execution of this Agreement .
B . Cumulative Remedies . As a further and cumulative
remedy, Empire agrees for itself, its legal representatives,
successors, and assigns, that the City, the Agency, and their
respective successors and assigns, shall have the right and power
to: (i) institute and prosecute any proceeding at law or in equity
to enforce any covenant and obligation herein contained, (ii)
enjoin the threatened or attempted violation by Empire, its legal
representatives, successors, tenants, and assigns, and (iii)
collect damages from the aforesaid who violate the covenants and
obligations contained herein. In addition, Empire hereby covenants
for itself, its legal representatives, successors, and assigns to
grant the City and the Agency such rights and powers to institute
and prosecute such proceedings .
12 -
The remedies set forth in this Section shall be in addition
to any and all other remedies available to the City and the Agency
under this Agreement or as a matter of law. The parties
acknowledge and agree that the City and the Agency may exercise any
and all legal and equitable remedies available to the City and the
Agency under the laws of the State of California to enable the City
and the Agency to exercise the rights of the City and the Agency
hereunder and to enforce the provisions of this Agreement
including, but not limited to, those which are contained in this
Section.
Upon written demand of the City or the Agency, Empire
agrees to pay all costs, fees and expenses of the City incurred in
connection with enforcement by the City or the Agency of the
provisions of this Section or in seeking any of the remedies
legally available to the City or the Agency related to this
Agreement, including but not limited to reasonable attorneys ' fees,
court costs, and any costs attributable to City or Agency staff
time .
C. Rights and Remedies of Empire. In the event that the
City or the Agency fails to perform any of their respective
obligations or breaches any of the covenants contained herein,
Empire may exercise all legal and equitable remedies available to
Empire under the laws of the State of California and Empire shall
be entitled to reimbursement of reasonable attorney fees, court
costs, and related costs .
Section 13 . Obligation to Obtain Financing. The City
shall have no obligation to provide any form of financial
assistance to Empire in connection with development of the Property
or completion of the Project except as specifically provided in
Section 3 herein.
Section 14 . Notices. All notices and demands of any kind
which any party hereto may be required to serve upon any other
party under the terms of this Agreement shall be served in writing
by personal service or by leaving a copy of such notice or demand
at the address hereinafter set forth, whereupon service shall be
deemed complete and notices and demands shall be deemed to have
been received on the date of such personal service; or by mailing
a copy thereof by certified or registered mail, postage prepaid,
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airmail if the address is outside the state in which the same is
mailed, return receipt requested, addressed as follows :
To the City: City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Attention: Mayor Tom Minor
With Copy To: City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Attention: James F. Penman, City
Attorney
To the Agency: Redevelopment Agency of the City of
San Bernardino
201 North "E" Street, Third Floor
San Bernardino, California 92401-1507
Attention: Timothy C. Steinhaus
With Copy To : Sabo & Green, A Professional
Corporation
23801 Calabasas Road, Suite 1015
Calabasas, California 91302-1595
Attention: Edward W. Pilot
To Empire : Empire A/G Recreational, LLC
12265 World Trade Drive, Suite H
San Diego, California 92128
Attention: David R. Willis
With Copy To: Donald J. Regan, P/C
245 Fischer Avenue, Suite D-1
Costa Mesa, California 92626
Service shall be deemed complete and notices and demands shall be
deemed to have been received at the expiration of the third
calendar day after the date of mailing, notwithstanding any other
date for receipt set forth on any return receipt or the failure of
any party to receive a return receipt . The addresses to which
notices and demands may be delivered or sent may be changed from
time to time by service of notice as hereinabove provided by any
party upon the other party.
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Section 15 . Applicability of Laws : Dispute Resolution.
This Agreement shall be construed and enforced in accordance with
the laws of the State of California. If any dispute shall arise
concerning the provisions of this Agreement including, but not
limited to, those provisions set forth in the Scope of Development
attached hereto, such dispute shall be submitted to reference
pursuant to Code of Civil Procedure Sections 638 to 645 . 1,
inclusive, or, alternatively, to arbitration, on written notice of
demand for arbitration ( "Notice of Demand" ) of either party hereto
given to the other. The arbitration shall be conducted pursuant to
the provisions of Title 9 of Part 3 of the California Code of Civil
Procedure (statutory section references in this Section shall be
deemed to be references to the Code of Civil Procedure) , as
amended, amplified and modified by the following provisions : The
arbitration shall be by a single neutral arbitrator. If the
parties hereto have not agreed on the selection of the arbitrator
within five (5) calendar days after giving of Notice of Demand,
then either party hereto may petition the court to select the
arbitrator pursuant to Section 1281 . 6 . Each party hereto shall
submit its nominees, if any, to the court within five (5) calendar
days after said petition is served and filed. The arbitrator shall
make his award within forty-five (45) calendar days after his
appointment . Certain periods of time set forth in said Title 9
shall be shortened as follows : Section 1284 , 1288 .4 , 1290 . 2 and
1290 . 6--halved; Section 1288--four (4) years to sixty (60) calendar
days, and one hundred (100) days to thirty (30) calendar days; and
Section 1288 . 2--one hundred (100) days to thirty (30) calendar
days . Venue of the arbitration hearing and any court proceedings
referenced below shall be in the county where the Property is
located. The parties hereto as parties to any such arbitration
shall have the right to petition the court to confirm, correct or
vacate the arbitrator' s award pursuant to Section 1285 and to
appeal the decisions of the Superior Court in any such proceeding
as provided in Section 1294 and 1294 .2 ; provided, however, that any
such appeal shall not stay or have the effect of staying the
decision of the Superior Court . The costs of the arbitration and
reimbursement to the other party for any and all legal fees related
thereto pursuant to this Agreement, shall be borne by the losing
party or in such proportions as the arbitrator shall decide .
Nothing contained in this Agreement shall preclude either party
hereto from seeking judicial relief which may not be obtainable or
enforceable in, or which is in aid of, the arbitration proceedings
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referenced in this Section; provided that such judicial relief
shall be sought in good faith and not as a subterfuge to avoid the
arbitration procedures .
Section 16 . Obligation to Refrain from Discrimination.
Empire covenants by and for itself, its successors and assigns,
that there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed,
religion, sex, marital status, age, handicap, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, nor shall Empire or any
persons or entities claiming under or through it establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, Lessees or vendees of
the Property.
Section 17 . Form of Nondiscrimination and Nonsegregation
Clauses . All deeds, leases or contracts entered into for the
transfer, use, occupancy, tenure, or enjoyment of the Property,
shall contain or be subject to nondiscrimination clauses in
substantially the following form:
1 . In deeds : "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee
himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
Lessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land. "
2 . In leases : "The lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or her, that
this lease is made and accepted upon and subject to the following
conditions :
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That there shall be no discrimination against or
segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, handicap, age,
ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or
any person claiming under or through him or her, establish or
permit any such practices or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sublessees, subtenants or vendees
in the premises herein leased. "
3 . In contracts : "There shall be no discrimination
against or segregation of, any person, or group of persons on
account of race, color, creed, religion, sex, marital status, age,
handicap, ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the
premises . "
Section 18 . Indemnification. It is understood and agreed
that no official, employee or agent of the City or the Agency shall
be personally liable to Empire or any other person for any
obligation or obligations under the terms of this Agreement .
Empire shall save the City and the Agency, and all parties in
privity to the City and the Agency, harmless from all claims,
demands, causes of action, expenses, and liability of whatsoever
kind or nature which may arise out of, because of, concerning, or
incident to the performance of Empire under this Agreement,
including all court actions, costs and expenses and attorney' s fees
relative to the City or the Agency being a party to this Agreement
as may be initiated by Empire or any third party for any reason
whatsoever, except in the event that the City or the Agency has
caused the default either through willful misconduct or negligence,
including any claims for damages or personal injuries on the
Property.
Section 19 . Inspection of Books and Records . The books
and financial records of Empire pertaining to the City' s financial
assistance as set forth in Section 3 shall be retained by Empire
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and shall be available to the City for inspection for purposes of
performing an audit for a period of five (5) years following the
date of this Agreement, or for a longer period as required by law.
The cost of reproduction of any such financial records shall be
borne by the City. The City shall have the right, at all
reasonable times, during business hours, to inspect the books and
records of Empire pertaining to the City' s financial assistance
provided pursuant to Section 3 of this Agreement .
Section 20 . Insurance . Empire shall maintain a
comprehensive liability and property damage insurance policy in the
amount of One Million Dollars ($1, 000, 000) combined single limit
per occurrence. Such policy shall protect the Agency and the City
from all claims for damages arising out of Empire ' s activities
under this Agreement .
Empire shall furnish the Agency and the City with
certificates of insurance countersigned by an authorized agent of
the insurance carrier naming the Agency and the City, respectively,
and their officers, agents, and employees as additional insureds
under the insurance policy. The insurance policy shall be issued
by a responsible insurance company authorized to do business in
California with a rating of no less than "A" by Best' s Rating
Service, and shall be in a form satisfactory to the City. Empire
shall within ten (10) days of the date of this Agreement, deposit
with the City a certificate showing such insurance to be in full
force and effect . Such certificates of insurance shall contain a
statement of obligation on behalf of the insurance carrier to
notify the Agency and the City, respectively, of any material
change, cancellation or termination of coverage at least thirty
(3 0) days in advance of the effective date of any such material
change, cancellation, or termination. Insurance coverage provided
by Empire shall be primary and not contributing with any insurance
maintained by the Agency or the City, and the policy shall contain
such an endorsement . The insurance policy shall contain a waiver
of subrogation for the benefit of the Agency and the City.
Empire shall furnish or cause to be furnished to the City
and the Agency satisfactory evidence that any contractor with whom
Empire has contracted to remove the existing community garden which
is currently located on the Property, remove existing structures
from the Property, including without limitation, the storage
compartments, construct and install the Improvements on the
Property, and complete the Project on the Property pursuant to this
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Agreement, maintains workers, compensation insurance for all
workers under its employ, as required by law.
Section 21 . Successors and Assigns ; Assignment . The
provisions of this Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and
assigns of the parties hereto. Empire shall not assign or transfer
any or all of its rights or obligations hereunder without the prior
written consent of the City.
Section 22 . Entire Agreement ; Amendment . Except as
otherwise expressly provided herein, this Agreement constitutes the
entire agreement between the parties pertaining to the subject
matter herein and supersedes all prior and contemporaneous
agreements and understandings . The parties intend this Agreement
to be the final expression of their agreement with respect to the
terms hereof and a complete and exclusive statement of such terms .
No modification, amendment or waiver of any term hereof shall be
binding unless executed in writing by any party or parties to be
bound thereby.
This Agreement may be amended as deemed necessary by the
parties hereto upon written instruments duly approved and executed
by the parties hereto. Any such amendments or modifications shall
be valid, binding, and legally enforceable only if in written form
and executed by Empire, the City and the Agency after the same have
been duly approved and authorized for execution.
Section 23 . Severability. If any term or provision of
this Agreement or the application thereof shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to circumstances other than
those to which it is invalid or unenforceable, shall not be
affected thereby and each term and provision of this Agreement
shall be valid and shall be enforced to the extent permitted by
law.
Section 24 . Section Headings. The headings of the several
sections of this Agreement are inserted solely for convenience of
reference, and are not a part of and are not intended to govern,
limit or aid in the construction of any term or provision hereof .
Section 25 . Meaning_ of Terms . Where the context so
requires, the use of the masculine gender shall include the
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feminine and the neuter gender, and the singular shall include the
plural and vice versa.
Section 26 . Effective Date of Agreement ; Execution; Term.
This Agreement shall not be effective for any purpose or be binding
and enforceable upon the City or the Agency until such time when
this Agreement has been approved pursuant to official action of the
City and the Agency in accordance with duly adopted and approved
City and Agency resolutions authorizing the Mayor and City Clerk of
the City, and the Chairman and Secretary of the Agency to execute
this Agreement on behalf of the City and the Agency, respectively.
This Agreement may be executed in original counterparts, each of
which shall be deemed to be an original for all purposes, and such
counterparts shall constitute one and the same instrument . This
Agreement shall remain in full force and effect until all of the
obligations set forth herein have been satisfied.
20 -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the year and day first above written.
ATTEST CITY OF SAN BERNARDINO
By. BY
Rachel Clark Tom Minor
City Clerk Mayor
APPROVED AS TO FORM
AND LEGAL CONTENT:
James F. Penman
City Attorney
By:
ATTEST: REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By By
Timothy C. Steinhaus Tom Minor
Agency Secretary Chairman
APPROVED AS TO FORM AND LEGAL CONTENT:
By:
Timothy J. Sabo
Agency Special Counsel
EMPIRE A/G RECREATION, LLC
By: Empire & Associates, Inc.
Manager
By
David R. Willis
President
APPROVED AS TO FORM AND LEGAL CONTENT:
DONALD J. REGAN, PC
By:
Donald J. Regan
Counsel for Empire A/G
Recreation, LLC
SBEO\0001\DOC\3067.14
8\14\96 3:00 ew
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EXHIBIT "All TO JOINT DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF THE PROPERTY
5.
Exhibit A 1 To JDA
EXHIBIT "B" TO JOINT DEVELOPMENT AGREEMENT
SCOPE OF DEVELOPMENT
DEVELOPMENT
Empire shall develop the Property as a public park and
recreational facility in accordance with the actual development plans
to be proposed and submitted by Empire to the City. Empire shall
develop the Property by removing the existing community garden which
is currently located on the Property, removing existing structures
(including any asbestos contained therein) from the Property,
including without limitation, the storage compartments, and
constructing and installing a public park and recreational facility
on the Property consisting of: sixteen (16) controlled access soccer
fields with ancillary buildings, including without limitation, two
(2) concession stands to be located adjacent to the storage area, and
public restrooms; controlled access parking sufficient to accommodate
500 to 600 vehicles; and related landscaped areas.
The Improvements shall be first class, constructed of quality
materials, to City Code, and shall be unified in architectural theme
and treatment throughout the Property and adjacent off-site areas,
insofar as reasonable and practicable.
All Improvements to be constructed by Empire shall be
constructed or installed in accordance with the technical
specifications, standards and practices of the City and in accordance
with plans and specifications approved by the City. Empire shall
cause the proper documents to be filed with the City.
The Property shall include on-site parking in accordance with
applicable City regulations. The Lessee shall design all structures,
landscaping and parking areas to achieve a high degree of
attractiveness and compatibility with the Property and area in which
the Property is located.
The City will use its best efforts to cause the School
District to make available on an as needed basis two (2) soccer
fields and parking, located in the Emmerton Elementary School
adjacent to the Property. Four (4) of the sixteen (16) soccer fields
Exhibit B - 1 To JDA
to be construed on the Property shall be lighted, secured and
utilized solely during competitive play as determined by CYSA-S ' s
nominee. All other portions of the Property, including without
limitation, the twelve (12) soccer fields, shall remain open and
accessible for public use, (including, without limitation, organized
public groups of twenty-five (25) or more persons who have obtained
recreational use permits from CYSA-S' s nominee, and persons or
entities who have requested recreational use permits from the City
and whose use in CYSA-S' s nominee' s opinion will not damage the
Property) on a first come first serve, permit only basis, to be
mutually determined by the Parks Department and CYSA-S' s nominee,
during such times as CYSA-S' s nominee is not conducting its annual
recreational and competitive league programs, which shall not exceed
sixty-four (64) hours per seven (7) day week. CYSA-S' s nominee shall
have the right to conduct its annual recreational and competitive
league tournaments on the Property on an exclusive basis.
The issuance of recreational use permits to organized public
groups, persons, firms, corporations, or societies other than CYSA-
S' s nominee shall be in accordance with the procedures used by the
Parks Department in connection with other City parks, and all users
of the Property other than CYSA-S' s nominee shall comply with the
provisions of Chapter 12 . 80 . The Parks Department and CYSA-S' s
nominee shall jointly develop and agree upon a turf management
program which addresses the appropriate extent of usage of the turf
areas of the Property.
Empire shall commence and complete the Project by the times
established therefore in the Schedule of Performance (Exhibit "E") .
DEVELOPMENT STANDARDS
The Project shall be developed in accordance with applicable
building and safety codes.
DEMOLITION AND SOILS
Empire assumes all responsibility for surface and subsurface
conditions on the Property and the suitability of the Property for
the Project . If the surface and subsurface conditions of the
Property are not entirely suitable for such development and use,
Empire shall at its cost take all actions necessary to render the
Property entirely suitable for such development . Empire has
Exhibit B - 2 To JDA
undertaken all investigation of the Property it has deemed necessary,
and has not received or relied upon any representations of City, the
Agency, or their respective officers, agents and employees. Empire
shall undertake at its cost all demolition required in connection
with the development of the Project .
Exhibit B - 3 To JDA
EXHIBIT "C" TO JOINT DEVELOPMENT AGREEMENT
LEASE
This Lease ("Lease") is made and entered into this 1st day
of August, 1997, by and between the CITY OF SAN BERNARDINO, a
municipal corporation ("Lessor" or "City") , and ,
a non-profit public benefit corporation ("Lessee") , which is entering
into this Lease for the benefit of the CALIFORNIA YOUTH SOCCER
ASSOCIATION - SOUTH ("CYSA-S") .
Lessor, for and in consideration of the rent to be paid by
Lessee and of the covenants and provisions to be kept and performed
by Lessee under this Lease, hereby leases to Lessee, and Lessee
agrees to lease from Lessor, that certain real property consisting of
approximately fifty (50) acres of real property located in the
northeast portion of the City of San Bernardino, California near the
Highway 30 Highland/Arden Avenue Exit, as more fully described on
Exhibit "A" attached hereto, together with any and all improvements
thereon ( "Property") .
This Lease is being entered into in accordance with the terms
and provisions of that certain Joint Development Agreement (Patton
Park Recreational Facility) by and among the Lessor, the
Redevelopment Agency of the City of San Bernardino, and Empire A/G
Recreation, LLC dated August 1996, which is incorporated herein
by this reference ("Agreement") . This Lease shall be subject to and
carried out in accordance with the terms and conditions of the
Agreement .
ARTICLE 1 . TERM OF LEASE
Term; Extended Term
Section 1 . 1 . This Lease shall be for a term of twenty
(20) years, commencing on the date set forth above, and ending twenty
(20) years thereafter ("Term") , unless terminated earlier pursuant to
the provisions of this Lease, with two (2) five (5) year options to
renew ( "Extended Term") .
Exhibit C - 1 To JDA
Holding Over
Section 1 .2 . In the event Lessee, with Lessor' s consent,
holds over and continues in possession of the Property after
expiration of the Term, Lessee' s continued occupancy of the Property
shall be considered a year-to-year tenancy subject to all the terms
and conditions of this Lease and the JDA.
ARTICLE 2 . RENT
Rent
Section 2 . 1 . Lessee agrees to pay to Lessor as rent for
the use and occupancy of the Property a sum equal to One Dollar
($1 . 00) per year ("Rent") . The Rent shall be paid by Lessee to
Lessor at 300 North "D" Street, San Bernardino, California 92418, or
at any other place as Lessor may from time to time designate by
written notice delivered to Lessee.
Books and Records
Section 2 . 2 . Lessee shall at all times keep or cause to
be kept complete and accurate records and books of account showing
the total amount of revenue made in, on, or from the Property.
Lessee agrees to maintain for a period of one year following the
close of each calendar month all records and books of account showing
or in any way pertaining to the revenue made in, on, or from the
Property during that calendar month. Lessee shall maintain all such
books and records on the Property, or at such location in which
Lessee' s offices are situated.
ARTICLE 3 . USE OF PROPERTY
Permitted Use
Section 3 . 1 . During the Term of this Lease, Lessee' s use
of the Property shall be limited to conducting Lessee' s annual
recreational and competitive league programs and tournaments,
approving the City' s issuance of recreational use permits to public
groups, persons, firms, corporations or societies whose use in
Lessee' s opinion will not damage the Property, and operating and
maintaining the Property, as well as for uses normally incident to
Exhibit C - 2 To JDA
said purposes, and for no other purposes. Lessee shall not use or
permit the Property to be used for any other purpose, without the
prior written consent of Lessor.
Lessee shall have the right to conduct its annual
recreational and competitive league programs on the Property on a not
to exceed sixty-four (64) hours per seven (7) day week basis, to be
determined by Lessee in its sole discretion. During such time as
Lessee is not conducting its annual recreational and competitive
league programs, the Property shall remain open for public access
(including, without limitation, organized groups, persons, firms,
corporations or societies who have obtained recreational use permits
from Lessee) on a first come first serve, permit only basis, to be
mutually determined by Lessor' s Parks Recreation and Community
Services Department ("Parks Department") and Lessee. Lessee shall
have the right to conduct its annual recreational and competitive
league tournaments on the Property on an exclusive basis.
The issuance of recreational use permits to organized groups,
persons, firms, corporations or societies other than Lessee shall be
in accordance with the procedures used by the Parks Department in
connection with other City parks, and all users of the Property other
than Lessee shall comply with the provisions of Chapter 12 . 80 .
Operation of Business
Section 3 .2 . During the Term and the Extended Term of
this Lease, Lessee shall, unless prevented by conditions beyond
Lessee ' s control, conduct business of the type and nature specified
in Section 3 . 1 of this Lease on the Property in a diligent and
businesslike manner and according to the Schedule of Events, attached
hereto as Exhibit "B" and incorporated herein by this reference.
Lessee shall employ a sufficient number of personnel to conduct the
business in a manner consistent with sound business and management
practices.
Soccer Tournament Sanctioning
Section 3 . 3 . Lessee shall ensure that for the initial
one-year period of time commencing as of July 1, 1997, through and
including June 30, 1998, and for each successive one-year period of
time thereafter, both CYSA-S and any affiliate or affiliated
organization shall sanction not less than fifteen (15) Soccer
Exhibit C - 3 To JDA
Tournaments (as hereinafter defined) at the Patton Park Soccer
Fields. Lessee shall ensure that CYSA-S shall not sanction other
soccer tournaments consisting of local, regional and State of
California tournaments or sanctioned activities to be conducted
south of the northern boundaries of the Counties of San Luis Obispo,
Kern and San Bernardino and within all other California Counties
south of said specified Counties (collectively, "CYSA-S Sanctioning
Area") unless and until CYSA-S is able to certify that not less than
fifteen (15) Soccer Tournaments (as hereinafter defined) shall be
actually conducted at the Patton Park Soccer Field Complex. In the
event that the minimum number of Soccer Tournament weekends and
soccer activities sanctioned or hosted by Lessee or CYSA-S is
conducted at the Patton Park Soccer Field Complex, Lessee or CYSA-S
may additionally sanction or host other tournaments at any other
locations within the CYSA-S Sanctioning Area. Except with respect to
the unconditional commitment of Lessee and CYSA-S to conduct the
State Cup Soccer Tournament at the Patton Park Soccer Field Complex,
nothing contained herein shall commit Lessee or CYSA-S to sanction or
host additional tournaments at the Patton Park Soccer Field Complex
or to require Lessee or CYSA-S to sanction or host soccer tournaments
at the Patton Park Soccer Field Complex. However, in the event
Lessee or CYSA-S does in fact sanction or host soccer tournaments
within the CYSA-S Sanctioning Area, not less than fifteen (15) agreed
upon Soccer Tournament weekends and soccer activities shall be
conducted at the Patton Park Soccer Field Complex, per year.
Lessee shall ensure that CYSA-S maintains its corporate
existence and remains in good standing at all times with the CYSA-S
Sanctioning Organizations and the applicable nonprofit corporation
laws of the State of California and maintains its status as a
501 (c) (3) organization pursuant to the federal tax laws, and that (i)
the by-laws, articles of incorporation and other agreements, licenses
and sanctioning approvals as granted to CYSA-S by the CYSA-S
Sanctioning Organizations, (ii) any of such documents or such other
documents as may be applicable to CYSA-S or approved by CYSA-S, and
(iii) any such other documents as may have been entered into by CYSA-
(, shall not be altered, amended, changed or modified in any manner
that would adversely affect the ability of CYSA-S or Lessee to
conduct business or to continually host or sanction soccer
tournaments within the CYSA-S Sanctioning Area and at the Patton Park
Soccer Field Complex. Lessee shall ensure that CYSA-S shall not take
any action or allow any action to be taken by any CYSA-S Sanctioning
Organization that likewise would adversely affect the ability of
Exhibit C - 4 To JDA
Lessee or CYSA-S to conduct business or to continually host Soccer
Tournaments or to sanction Soccer Tournaments within the CYSA-S
Sanctioning Area and at the Patton Park Soccer Field Complex. In
consideration of the commitments made by the City and the Agency for
undertaking the financing and causing the Improvements to be
completed for the Patton Park Soccer Field Complex, Lessee shall
ensure that CYSA-S shall take all actions as may be necessary or
required to maintain its corporate existence and to maintain the sole
and exclusive right to sanction soccer tournaments through the United
States Soccer Federation, the United States Youth Soccer Association
or other national or international organization within the CYSA-S
Sanctioning Area to fulfill the commitments of CYSA-S pursuant to
this Agreement for the continued sanctioning of Soccer Tournaments
within the CYSA-S Sanctioning Area and at the Patton Park Soccer
Field Complex.
As used herein the term "Soccer Tournament" shall mean any
youth or adult soccer tournament, or a soccer tournament comprised of
any combination or youth and adult soccer team participants,
sanctioned by CYSA-S conducted at the Patton Park Soccer Field
Complex on a weekend consisting of at least a consecutive Saturday
and Sunday event wherein (i) at least an average of one hundred (100)
teams are entered in the tournament and which teams participate in
soccer games at least one (1) day during the weekend, and (ii) at
least sixteen (16) fields at the Patton Park Soccer Fields and at
other locations within the boundaries of the City are utilized for
soccer games on each such consecutive Saturday and Sunday, and (iii)
at least an average of 160 soccer games are conducted per weekend.
Any CYSA-S tournament that is scheduled to be held for more than one
(1) weekend in duration, shall be considered as a separate Soccer
Tournament for each additional weekend provided that the conditions
set forth in items (i) , (ii) and (iii) above are met for each
additional weekend of the continuation of the tournament in question.
Certificate/Guarantee
Section 3 .4 . Lessee shall cause the United States Soccer
Association, Inc. Youth Division of United States Soccer Federation
to execute the Certificate Of Membership And Good Standing And
Guarantee Of Continuity Of Sanctioning Authority, attached hereto as
Exhibit "C" and incorporated herein by this reference.
Exhibit C - 5 To JDA
Local Vendors; Merchants; Hotels
Section 3 .5 . Lessee shall make available at least fifty
percent (500) cf the concession booths for use by local vendors
during soccer tournaments. In the event at least fifty percent (50%)
of such booths are not actually utilized by local vendors, Lessee
shall provide Lessor with adequate records evidencing Lessee' s good
faith efforts and contacts with local vendors . Lessee shall also
initiate, participate in, and coordinate an advertising program with
merchants on a City-wide basis, which program shall include without
limitation, flyers and coupon books. Lessee hereby agrees that all
soccer tournament headquarters shall be located in hotels or other
City approved accommodations which are situated in the City. Lessee
shall provide Lessor with adequate records which reflect the hotels
actually utilized for soccer tournaments, including without
limitation the number of soccer tournament guests occupying such
hotels .
Relocation of CYSA-S Headquarters
Section 3 . 6 . In the event a suitable office building is
available within a one (1) mile radius of the Property, Lessee shall
ensure that CYSA-S relocates its headquarters to said office
building.
Insurance Hazards
Section 3 . 7 . Lessee shall not commit or permit the
commission of any acts on the Property nor use or permit the use of
the Property in any manner that will increase the existing rates for
or cause the cancellation of any fire, liability, or other insurance
policy insuring the Property.
Waste or Nuisance
Section 3 . 8 . Lessee shall not commit or permit the
commission by others of any waste on the Property. Lessee shall not
maintain, commit, or permit the maintenance or commission of any
nuisance as defined in Civil Code Section 3479 on the Property.
Lessee shall not use or permit the use of the Property for any
unlawful purpose.
Exhibit C - 6 To JDA
Compliance With Laws
Section 3 . 9 . Lessee shall at Lessee ' s own cost and
expense comply with all statutes, ordinances, regulations, and
requirements of all governmental entities, both federal and state and
county or municipal, relating to Lessee ' s use and occupancy of the
Property, including without limitation Chapter 12 . 80, and the
Operations Manual and turf management program described in Section
5 .2 of this Lease. The judgment of any court of competent
jurisdiction, or the admission by Lessee in a proceeding brought
against Lessee by any government entity, that Lessee has violated any
such statute, ordinance, regulation, or requirement shall be
conclusive as between Lessor and Lessee and shall constitute grounds
for termination of this Lease by Lessor.
ARTICLE 4 . TAXES AND UTILITIES
Utilities
Section 4 . 1 . Lessee shall pay, and hold Lessor and the
Property free and harmless from, all charges for the furnishing of
gas, water, sewer, electricity, telephone service, garbage pickup and
disposal, and other public utilities to the Property during the
Term and the Extended Term of this Lease. All such charges shall be
paid by Lessee directly to the provider of the service and shall be
paid as they become due and payable, but in any event before
delinquency. Lessor shall use its best efforts to obtain the lowest
rates available for water and electricity, and its best efforts to
ensure that such rates are maintained during the Term and the
Extended Term of this Lease. Lessee shall be entitled to receive all
on-site pay telephone revenue.
Personal Property Taxes
Section 4 .2 . Lessee shall pay before they become
delinquent all taxes, assessments, and other charges including
possessory interest taxes levied or imposed by any governmental
entity on the furniture, trade fixtures, appliances, and other
personal property placed by Lessee in, on, or about the Property.
Exhibit C - 7 To JDA
Possessory Interest Taxes
Section 4 . 3 . Lessee recognizes that the interests of the
Lessee in this Lease may be subject to imposition of a possessory
interest tax by the County Assessor of the County of San Bernardino,
and agrees to pay any such possessory interest tax as may be so
levied as to the interests of the Lessee in this Lease and the
Property.
ARTICLE S . IMPROVEMENTS, ALTERATIONS AND REPAIRS
Condition of Property
Section 5 . 1 . Lessee accepts the Property, in its present
condition and stipulates with Lessor that the Property is in good,
clean, safe, and tenantable condition as of the date of this Lease.
Lessee further agrees with and represents to Lessor that the Property
has been inspected by Lessee, that it has received assurances
acceptable to Lessee by means independent of Lessor or any agent of
Lessor of the truth of all facts material to this Lease, and that the
Property is being leased by Lessee as a result of its own inspection
and investigation and not as a result of any representations made by
Lessor or any agent of Lessor except those expressly set forth in
this Lease. Upon Empire' s completion of the design, construction and
installation of the Improvements (as defined in the JDA) to the
Property in accordance with the Cost Construction Budget (Exhibit "G"
to the JDA) , Lessor agrees to provide the same for use by Lessee in
accordance with this Lease. Provided that the Improvements are
designed, constructed and installed in accordance with the Cost
Construction Budget, Lessee agrees to accept the Improvements in said
condition.
Operation, Maintenance and Repairs; Deposit
Section 5 . 2 . Lessee and the Parks Department shall
jointly develop and agree upon a turf management program which
addresses the appropriate extent of usage of the turf areas of the
Property, and an Operations Manual which establishes criteria
relating to the operation of the Property by Lessee, including
without limitation, the criteria described in Chapter 12 . 80 .
Moreover, Lessee shall at its own cost and expense operate and
maintain all portions of the Property in good order and repair and in
as safe and clean a condition as they were when received by Lessee
Exhibit C - 8 To JDA
from Lessor, reasonable wear and tear excepted. Lessee ' s obligation
to operate, maintain and repair shall specifically include necessary
maintenance and repairs to the soccer fields and ancillary buildings,
including exterior roofs, exterior walls, structural supports,
foundations, electrical, heating, ventilation, and air conditioning
systems, interior walls, floor coverings, ceilings, painting and
maintenance of exterior walls, the interior and exterior portions of
all doors, paved driveways and parking areas, and landscaping, sports
and security lighting, and irrigation for the Property.
Notwithstanding the above, Lessor shall be responsible for the
removal of graffiti on, and the repair of vandalism to, the Premises.
In the event Lessor fails to completely remove graffiti from, or to
completely repair vandalism to the Premises within fifteen (15)
calendar days from the date on which the graffiti first appeared, or
the vandalism first occurred on the Premises, Lessee shall have the
right to hire its own contractor to perform such work and to seek
reimbursement from Lessor for the reasonable costs thereof.
Upon execution of this Lease through Lessee's fiscal year end
1997, and on an annual fiscal year basis thereafter commencing fiscal
year 1998, Lessee shall deposit ten percent (10%) of the gross
revenues generated by the facilities located on the Property
(including without limitation gross revenues generated by the soccer
fields, gross profits associated with sales of concessions and rental
space, and corporate sponsorship) ("Deposit") into a local bank
account reserve fund. The Deposit shall be made within 30 days of
Lessee' s receipt of the annual fiscal year end audit . Failure to
make such Deposit shall constitute a material default and breach of
this Lease, except that: (i) for the period ending fiscal year 1997,
Lessee shall not be in default if actual and verified operation,
maintenance and repair expenses are greater than gross revenues as
defined immediately above; (ii) Lessor may approve deposits of less
than ten percent (10%) upon Lessee' s demonstration to Lessor' s
reasonable satisfaction as to the reasons why Lessee is unable to
make such Deposit; and (iii) Lessor may within its sole discretion
approve Lessee' s written requests to use sums deposited in the
reserve fund for capital improvements.
In the event of any material default and breach of this Lease
as defined in Section 9 .2 below by Lessee during the Term or, if
applicable, Extended Term of this Lease, Lessor may retain all sums
deposited pursuant to this Section 5 .2 . Upon a successful completion
of the Term or, if applicable, Extended Term of this Lease, all such
sums on deposit shall be returned to Lessee.
Exhibit C - 9 To JDA
Alterations and Liens
Section 5 .3 . Lessee shall not make or permit any other
person to make any alterations to the Property without the prior
written consent of Lessor. Lessee shall be responsible for obtaining
all required approvals, permits and licenses from required
governmental entities for any and all alterations or construction of
improvements. Lessee shall keep the premises free and clear from any
and all liens, claims, and demands for work performed, materials
furnished, or operations conducted on the Property at the instance or
request of Lessee. Furthermore, any and all alterations, additions,
improvements, and fixtures, except furniture and trade fixtures, made
or placed in or on the Property by Lessee or any other person shall
on expiration or earlier termination of this Lease, become the
property of Lessor and remain on the Property. Lessor shall have the
option, however, on expiration or termination of this Lease, of
requiring Lessee, at Lessee' s sole cost and expense, to remove any or
all such alterations, additions, improvements, or fixtures from the
Property.
Inspection by Lessor
Section 5 .4 . Lessee shall permit Lessor or Lessor' s
agents, representatives, or employees to enter the Property at all
reasonable times for the purpose of inspecting the Property to
determine whether Lessee is complying with the terms of this Lease,
for the purpose of doing other lawful acts that may be necessary to
protect Lessor' s interest in the Property, or for the purpose of
performing Lessor' s duties under this Lease.
Surrender of Property
Section 5 . 5 . On expiration or earlier termination of this
Lease, Lessee shall promptly surrender and deliver the Property to
Lessor in as good condition as they are now at the date of this
Lease, excluding reasonable wear and tear, and repairs required to be
made by Lessor under this Lease.
Exhibit C - 10 To JDA
ARTICLE 6 . INDEMNITY AND INSURANCE
Hold-Harmless Clause
Section 6 .1. Lessor shall not be responsible for, and the
Lessee shall assume, all liability to persons which may be
attributable or incident to the Lessee's negligence or breach of this
Lease, or by the negligence or breach of this Lease by any of the
Lessee' s agents, employees, contractors, assigns, or the invitees of
any of them. Lessee further agrees to indemnify, save, hold
harmless, and defend Lessor, its officers, agents and employees, from
and against all suits, claims, demands or actions, liabilities,
judgments, costs and attorneys' fees arising out of, or in any manner
predicated upon personal injury, or death resulting from, related to,
caused by or incident to the Lessee' s negligence in the carrying out
of the terms of this Lease, or breach thereof, or any and all other
activities conducted by the Lessee, its agents, employees,
contractors or assigns, or any of their invitees, incident of this
Lease.
Public Liability and Property Damage Insurance
Section 6 .2 . A. The Lessee shall carry and maintain public
liability insurance, including but not limited to insurance against
assumed contractual liability under this Lease, to afford protection
with limits of liability in amounts approved from time to time by the
Lessor, but not less than One Million Dollars ($1, 000, 000) in the
event of bodily injury and death to any number of persons in any one
accident .
B. If and to the extent required by the law,
the Lessee shall carry and maintain worker' s compensation or similar
insurance in form and amounts required by law.
C. Policy Provisions: All insurance which this
Lease requires the Lessee to carry or maintain or cause to be carried
or maintained pursuant to this Section 6 .2 shall be in such form, for
such amounts, for such periods of time and with such insurers as the
Lessor may require or approve. All policies or certificates issued
by the respective insurers for public liability insurance will name
the Lessor as an additional insured, provide that any losses shall be
notwithstanding any act or failure to act or negligence of the Lessee
or the Lessor or any other person; provide that no cancellation,
reduction in amount, or material change in coverage thereof shall be
Exhibit C - 11 To JDA
effective until at least thirty (30) days after receipt by the Lessor
of written notice thereof; provide that the insurer shall have no
right of subrogation against the Lessor, its officers, agents, or
employees, and be reasonably satisfactory to the Lessor in all other
respects. In no circumstances will the Lessee be entitled to assign
to any third party rights of action which the Lessee may have against
the Lessor.
D. Delivery of Policy: The Lessee shall
deliver or cause to be delivered promptly to the Lessor a certificate
of insurance evidencing the insurance required by the Lessor and
shall also deliver, no later than thirty (30) days prior to the
expiration of any such policy, a certificate of insurance evidencing
each renewal policy covering the same risks.
The insurance required under this Section shall be issued by
a responsible insurance company authorized to do business in
California with a rating of no less than "A" by Best' s Rating
Service, and shall be in a form reasonably satisfactory to Lessor.
Lessee shall within ten (10) days of the date of this Lease, deposit
with Lessor a certificate showing such insurance to be in full force
and effect .
Fire and Extended Coverage Insurance
Section 6 .3 . Lessee shall, during the Term and the
Extended Term of this Lease, procure, carry, and pay for fire and
extended coverage insurance on the Property for at least ninety
percent (900) of their full replacement value. The policy shall name
Lessor as an additional insured, shall be issued by a responsible
insurance company authorized to do business in California with a
rating of no less than "A" by Best' s Rating Service, and shall be in
a form reasonably satisfactory to Lessee. Lessee shall within ten
(10) days of the date of this Lease, deposit with Lessor a
certificate showing such insurance to be in full force and effect .
The term "extended coverage" as used herein shall mean any casualties
that are commonly included under the term "extended coverage" as that
term is known and used in the casualty insurance business.
Lessee's Personal Property
Section 6 .4 . Lessee shall, during the full Term and the
Extended Term of this Lease and any renewals or extensions thereof,
maintain at Lessee' s own cost and expense an insurance policy issued
Exhibit C - 12 To JDA
by a reputable company authorized to conduct insurance business in
California with a rating of no less than "A" by Best' s Rating
Service, in a form reasonably satisfactory to Lessee, insuring for
their full insurable value all fixtures and equipment and, to the
extent possible, all merchandise that is, at any time during the Term
and the Extended Term of this Lease, in or on the Property against
damage or destruction by fire, theft, or the elements. Lessee shall
within ten (10) days of the date of this Lease, deposit with Lessor
• certificate showing such insurance to be in full force and effect .
Cancellation Requirements
Section 6 . 5 . Each of the insurance policies shall be in
• form reasonably satisfactory to Lessor and shall carry an
endorsement that, before changing or canceling any policy, the
issuing insurance company shall give Lessor at least thirty (30)
days ' prior written notice. Duplicate originals or certificates of
all such insurance policies shall be delivered to Lessor at Lessor' s
option.
ARTICLE 7 . LESSOR'S BID PROCESS
Bidding
Section 7 . 1 . Lessee shall in conjunction with Empire
prepare the project for bidding, and the bidding process shall be
conducted by Lessor' s Director of Public Works/City Engineer, in
accordance with the Rules for Bidding, attached hereto as Exhibit "D"
and incorporated herein by this reference.
ARTICLE 8 . SIGNS AND TRADE FIXTURES
Installation; Removal
Section 8 . 1 . Lessee shall not place any sign or trade
fixtures upon the Property without Lessor' s prior written consent
which shall not be unreasonably withheld. Any and all trade fixtures
or signs that can be removed without structural damage to the
Property shall remain the property of the Lessee and may be removed
by Lessee at any time before the expiration or earlier termination of
this Lease, provided Lessee repairs any damage caused by the removal.
Any trade fixtures or signs that are not removed from the Property by
Exhibit C - 13 To JDA
Lessee within thirty (30) days after the expiration or earlier
termination regardless of cause, of this Lease shall be deemed
abandoned by Lessee and shall automatically become the property of
Lessor as owner of the real property to which they are affixed.
ARTICLE 9 . ASSIGNMENT; DEFAULT; REMEDIES
Restriction Against Subletting or Assignment
Section 9 . 1 . Lessee shall not encumber, assign, or
otherwise transfer this Lease, any right or interest in this Lease,
or any right or interest in the Property without first obtaining the
express written consent of Lessor. Except as otherwise provided in
the JDA, Lessee shall not sublet the Property or any part of the
Property or allow any other person, other than Lessee' s agents,
servants, and employees, to occupy the Property or any part of the
Property without the prior written consent of Lessor. A consent by
Lessor to one (1) assignment, one (1) subletting, or one
(1) occupation of the Property by another person shall not be deemed
to be a consent to any subsequent assignment, subletting, or
occupation of the Property by another person. Any encumbrance,
assignment, transfer, or subletting without the prior written consent
of Lessor, whether voluntary or involuntary, by operation of law or
otherwise, is void and shall, at the option of Lessor, terminate this
Lease. The consent of Lessor to any assignment of Lessee ' s interest
in this Lease or the subletting by Lessee of the Property or parts of
the Property shall not be unreasonably withheld.
Default by Lessee
Section 9 .2 . The occurrence of any one or more of the
following events shall constitute a material default and breach of
this Lease by the Lessee :
(a) The absence of Lessee from or failure by Lessee to
conduct business on the Property for a period of thirty (30)
consecutive days.
(b) The failure by Lessee to make any payment of Rent or any
other payment or Deposit required to be made by Lessee hereunder as
and when due, where such failure shall continue for a period of
thirty (30) days after written notice thereof from Lessor to Lessee.
Exhibit C - 14 To JDA
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by Lessee, other than described in Paragraph (b) above,
where such failure shall continue for a period of thirty (30) days
after written notice thereof from Lessor to Lessee.
(d) The making by Lessee of any general assignment for the
benefit of creditors; the filing by or against Lessee of a petition
to have Lessee adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Lessee, it is
dismissed within thirty (30) days) ; the appointment of a trustee or
receiver to take possession of substantially all of Lessee' s assets
located at the Property or of Lessee ' s interest in this Lease, when
possession is not restored to Lessee within thirty (30) days; or the
attachment, execution, or other judicial seizure of substantially all
of Lessee' s assets located at the Property or of Lessee' s interest in
this Lease, when that seizure is not discharged within thirty (30)
days.
Remedies of Lessor
Section 9 .3 . In the event of any such material default or
breach by Lessee, Lessor may at any time thereafter, upon written
notice, and without limiting Lessor in the exercise of any right or
remedy which Lessor may have by reason of such default or breach:
(a) Terminate Lessee ' s right to possession of the Property
by any lawful means, in which case this Lease shall terminate and
Lessee shall immediately surrender possession of the Property to
Lessor. In such event, Lessor shall be entitled to retain any sums
deposited by Lessee pursuant to Section 5 .2 above and recover from
Lessee all damages incurred by Lessee by reason of Lessee ' s default,
including, but not limited to: the cost of recovering possession of
the Property; expenses of re-letting, including necessary renovation
and alteration of the Property; and reasonable attorneys ' fees.
(b) Maintain Lessee' s right to possession in which case this
Lease shall continue in effect whether or not Lessee shall have
abandoned the Property. In such event, Lessor shall be entitled to
enforce all of Lessor' s rights and remedies under this Lease,
including the right to recover the Rent as it becomes due hereunder.
Exhibit C - 15 To JDA
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the State of
California. Unpaid installments of rent or other unpaid monetary
obligations of Lessee under the terms of this Lease shall bear
interest from the date due at the maximum rate then allowed by law.
Default by Lessor
Section 9 .4 . Lessor shall be in default under this Lease
if Lessor fails to perform obligations required of Lessor within a
reasonable time, but in no event later than thirty (30) days after
written notice by Lessee to Lessor. Lessee shall have all remedies
available at law or in equity for any default or breach of this Lease
by Lessor.
ARTICLE 10 . CONDEMNATION
Condemnation Award
Section 10 . 1 . If the Property or any portion thereof are
taken under the power of eminent domain, any award for the taking of
all or any part of the Property under the power of eminent domain
shall be the property of Lessor, whether such award shall be made as
compensation for diminution in value of the leasehold or for the
taking of the fee, or as severance damages; provided, however, that
Lessee shall be entitled to any award for loss or damage to Lessee ' s
trade fixtures and removable personal property.
ARTICLE 11 . MISCELLANEOUS
Force Majeure-Unavoidable Delays
Section 11. 1 . If the performance of any act required by
this Lease to be performed by either Lessor or Lessee is prevented or
delayed by reason of an act of God, strike, lockout, labor troubles,
inability to secure materials, restrictive governmental laws or
regulations, or any other cause except financial inability that is
not the fault of the party required to perform the act, the time for
performance of the act will be extended for a period equivalent to
the period of delay, and performance of the act during the period of
delay will be excused. However, nothing contained in this Section
shall excuse the prompt payment of Rent by Lessee as required by this
Exhibit C - 16 To JDA
Lease or the performance of any act rendered difficult solely because
of the financial condition of the party required to perform the act .
Binding on Heirs and Successors
Section 11 .2 . This Lease shall be binding on and shall
inure to the benefit of the heirs, executors, administrators,
successors, and assigns of Lessor and Lessee, but nothing in this
section shall be construed as a consent by Lessor to any assignment
of this Lease or any interest therein by Lessee except as provided in
Section 9 . 1 of this .
Sole and Only Agreement
Section 11. 3 . This instrument constitutes the sole and
only agreement between Lessor and Lessee respecting the Property, and
correctly sets forth the obligations of Lessor and Lessee to each
other as of its date. Any agreements or representations respecting
the Property or their leasing by Lessor to Lessee not expressly set
forth or referenced in this instrument are null and void.
Severability
Section 11 .4 . The invalidity of any provision of this
Lease as determined by a court of competent jurisdiction shall in no
way affect the validity of other provisions hereof.
Amendments
Section 11.5 . This may be modified only in writing,
signed by the parties in interest at the time of the modification.
Notices
Section 11 . 6 . Any notice required or permitted to be given
hereunder shall be in writing and may be given by personal delivery
or by certified mail, and if given personally or by mail, shall be
deemed sufficiently given if addressed to Lessor or to Lessee at the
address as follows :
If to Lessor: City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Attn: Mayor Tom Minor
Exhibit C - 17 To JDA
With Copies To: Office of the City Attorney
City of San Bernardino
300 North "D" Street, Gth Floor
San Bernardino, CA 92418
Attn: James F. Penman, Esq.
and
Sabo & Green, A Professional Corporation
23801 Calabasas Road, Suite 1015
Calabasas, California 91302-1595
Attn: Edward W. Pilot
If to Lessee :
California
Attn:
With Copy To: California Youth Soccer Association - South
2051 East Cerritos Avenue, No. 8-C
Anaheim, California 92806
Attn: John Harper, President
Either party may, by written notice to the other party specify a
different address for notice purposes.
Waivers
Section 11. 7 . No waiver by Lessor of any provision hereof
shall be deemed a waiver of any other provision hereof or of any
subsequent breach by Lessee of the same or any other provision.
Lessor' s consent to, or approval of, any act shall not be deemed to
render unnecessary the obtaining of Lessor' s consent to or approval
of any subsequent act by Lessee. The acceptance of Rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any
provision hereof, other than the failure of Lessee to pay the Rent so
accepted, regardless of Lessor' s knowledge of such preceding breach
at the time of acceptance of such Rent.
Subordination
Section 11 . 8 . This is subordinate to any ground lease,
mortgage, deed of trust or any other hypothecation or security now
placed upon the real property of which the Property are a part and to
any and all obligatory advances made on the security thereof.
Notwithstanding such subordination, Lessee ' s right to quiet
Exhibit C - 18 To JDA
possession of the Property shall not be disturbed if Lessee is not in
default and so long as Lessee shall pay the Rent and observe and
perform all of the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms.
Net-Net-Net Lease
Section 11 . 9 . This Lease shall be deemed and construed to
be a "net-net-net lease. " Lessee shall pay for all tenant
improvements, operating costs associated with the Property, taxes,
and utilities.
Attorneys' Fees
Section 11 . 10 . If either party to this Lease brings an
action to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, shall be entitled to its
reasonable cost and attorneys' fees to be paid by the losing party as
fixed by the court . In the event Lessor utilizes the services of the
Office of the City Attorney, the costs of such services shall be
recoverable as attorneys' fees.
Lessor' s Access
Section 11 . 11 . Lessor and Lessor' s agents shall have the
right to enter the Property at reasonable times for the purpose of
inspecting the same, showing the same to prospective purchasers,
lenders or lessees, and making such alterations, repairs,
improvements or additions to the Property as Lessor may deem
necessary or desirable.
Merger
Section 11. 12 . The voluntary or other surrender of this
Lease by Lessee, or a mutual cancellation thereof, or a termination
by Lessor, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subtenancies or may, at the
option of Lessor, operate as an assignment to Lessor of any or all of
such subtenancies .
Authority To Act For Lessor
Section 11. 13 . It is understood and acknowledged that
Lessor shall act by and through the authority of, and actions taken
Exhibit C - 19 To JDA
on behalf of Lessor shall be exercised by, the legislative body of
the Lessor.
Approval Of Lease
Section 11 . 14 . It is understood and agreed that this Lease
is subject to the approval of the legislative body of the Lessor.
Acknowledgments
Section 11. 15 . The parties acknowledge that this Lease has
been negotiated by authorized representatives of each party, and both
parties hereby consent to this Lease having been drafted by Sabo &
Green, A Professional Corporation, as counsel to Lessor.
Counterparts
Section 11. 16 . This Lease may be executed in original
counterparts, each of which shall be deemed to be an original for all
purposes and such counterparts shall constitute one (1) and the same
instrument .
Exhibit C - 20 To JDA
WHEREFORE, the parties hereto, in consideration of the
conditions, covenants and promises contained herein, have executed
this Lease as indicated below.
LESSOR
By:
Tom Minor
Mayor
ATTEST:
Rachel Clark
City Clerk
LESSEE
By:
ATTEST:
Exhibit C - 21 To JDA
EXHIBIT "A" TO LEASE
LEGAL DESCRIPTION
OF THE PREMISES
0
t
L.
ti
Exhibit A - 1 To Lease
EXHIBIT "B" TO LEASE
SCHEDULE OF EVENTS'
Tournament/League/Program Competitive/Recreational Number of
Participating
Teams
Celtic Cup Competitive 500
Chino Spirit Spring Cup Competitive 134
Los Gauchos Invitational Competitive 125
Corinthians F.C. Invitational Competitive 125
Legacy International Cup Competitive 400
The Summer Classic Competitive 100
Annual Aztec Cup Competitive 125
California Heat Thanksgiving Cup Competitive 75
District Five Commissioner' s Cup Recreational 150
District Five All-Star Tournament Recreational 130
CYSA-S State Cup Competitive 800
CYSA-S American Cup Recreational 100
CYSA-S Olympic
Developmental Program Competitive >1, 000
players
Far Western Regionals Competitive 200
CYSA-S Standard League Play Competitive/
Recreational >16, 000
players
' This Schedule of Events shall also encompass and extend to any and all other
CYSA-S sanctioned competitive tournaments, in addition to those specifically
enumerated above.
Exhibit B - 1 To Lease
EXHIBIT "C" TO LEASE
CERTIFICATE OF MEMBERSHIP AND GOOD STANDING AND
GUARANTEE OF CONTINUITY OF SANCTIONING AUTHORITY
We understand that the California Youth Soccer Association (CYSA-S)
is negotiating with the City of San Bernardino ("City") to enter into
a long-term Lease ("Lease" ) for the operation of a major (16
contiguous fields) soccer complex ("Complex") . This Certificate is
provided at the request of CYSA-S.
1 . THE SAN BERNARDINO LEASE
We are informed that the City proposes to finance and build
the Complex to CYSA-S specifications and make it available to
CYSA-S pursuant to a Lease to which this Certificate will be
an Exhibit. Under the Lease CYSA-S will be obligated to
maintain and operate the Complex and to conduct, in each year
during its term, a minimum of 15 two day or more Soccer
Tournaments .
2 . SOCCER-WORLDWIDE ORGANIZATION AND AUTHORITY
The National Governing Body for soccer in the United States
of America is the United States Soccer Federation ( "US
SOCCER") . The coordinating body for youth soccer in the USA
is United States Youth Soccer Association, Inc. ("US YOUTH
SOCCER" ) . US SOCCER has delegated the authority and
responsibility to administer youth soccer programs in the
USA to US YOUTH SOCCER. The following chart explains and
verifies the pertinent organization and authority.
Federation Internationale FIFA is the international
de Football Association governing body for soccer
Exhibit C - 1 To Lease
United States Soccer US SOCCER is the FIFA member
Federation (National Governing Body) for
soccer in the U.S.A.
United States Youth Soccer US YOUTH SOCCER is the official
Youth division of US SOCCER, and
Association, Inc .
is made up of 55 member state
associations; one in each state
and two in California (North and
South) , New York, Ohio,
Pennsylvania and Texas .
California Youth Soccer CYSA-S is the US YOUTH SOCCER
Association member which is in good standing
for Southern California CYSA-S
is the official state
association and sanctioning body
for tournaments hosted by US
YOUTH SOCCER leagues, clubs,
and teams located within the
territory (Southern California) .
In addition, CYSA-S may organize
and host invitational and other
tournaments for US YOUTH SOCCER
affiliates ( independent
organizations that register
players - such as AYSO) as well
as teams from other regions,
states and countries.
3 . CERTIFICATE FOR CYSA-S AND GUARANTY OF SANCTIONING FOR SOUTHERN
CALIFORNIA
In consideration of, and conditioned upon the City' s
execution of and performance under the Lease, US YOUTH
SOCCER hereby verifies that :
3 . 1 . It is a nonprofit educational organization,
established as the Youth Division of US SOCCER and
Exhibit C - 2 To Lease
has the sole US SOCCER authority to act as the
coordinating body for and to administer (sanction)
the youth soccer programs of US SOCCER.
3 .2 . Pursuant to Rule 4011, Section 1 (b) (1) of the US
SOCCER Bylaws, CYSA-S as a designated "National State
Association" retains the US SOCCER delegated
authority to conduct all US YOUTH SOCCER programs
within the CYSA-S territory (Southern California) , in
all matters pertaining to interstate, regional,
national, and international competition.
3 .3 . US YOUTH SOCCER recognizes and acknowledges that
CYSA-S will incur obligations under the Lease,
particularly the obligation to annually conduct
fifteen tournaments as defined in the Lease. In this
regard, if, for any reason, CYSA-S ceases to be a US
YOUTH SOCCER member in good standing (the National
State Association for Southern California) , then, in
that event; US SOCCER agrees that :
3 .3 . 1. It will act, reasonably and in accordance with
its procedures to constitute and enroll another
entity as the National State Association for
the Southern California territory, and
3 . 3 . 2 . It will impose, as a condition to such new
entity' s Membership in US YOUTH SOCCER and
appointment as a National State Association, an
unconditional agreement and consent to be bound
to the obligation under the Lease to schedule,
sanction, and conduct a minimum of fifteen
tournaments each year during the term of the
Lease.
3 .3 . 3 . This guarantee, agreement and consent,
however, is not to be deemed to extend to or
include any CYSA-S financial obligations
incurred pursuant to the Lease. On the other
hand, if the City terminates the Lease for any
default or nonperformance by CYSA-S, the City
understands and agrees that US YOUTH SOCCER
may, but is not obligated to, seek to cause
CYSA-S or its success Member for the Southern
Exhibit C - 3 To Lease
California territory to assume the financial,
performance and all other obligations to the
City under the Lease.
UNITED STATES YOUTH SOCCER ASSOCIATION, INC.
YOUTH DIVISION Of UNITED STATES SOCCER FEDERATION
By:
Ray Thompsett, Executive Director
Exhibit C - 4 To Lease
EXHIBIT "D" TO LEASE
CITY OF SAN BERNARDINO
DEPARTMENT OF PUBLIC WORKS
RULES FOR BIDDING
1. Contract documents and construction plans shall be reviewed and
approved by the Director of Public Works/City Engineer
( "Engineer" ) for the City of San Bernardino ( "City" ) prior to
advertising for bids.
2 . Contract documents shall contain the following:
a. Notice Inviting Bids, with the time and place
for receiving sealed written bids.
b. Bid Schedule listing all items of the work to be
done, along with estimated quantities and spaces
for the unit bid prices to be entered.
C. Requirement for bidders to provide bid security
with their bids, in a minimum amount of 100 of
the total bid price, to insure execution of
contract. Security will be forfeited if bidder
is awarded contract and fails to execute
contract .
d. Requirement for the lowest responsible bidder to
file surety bonds for faithful performance and
labor and materials, with Developer, prior to
execution of contract, in the amounts of 100% of
the contract price.
e. Requirement for lowest responsible bidder to
file a policy or certificate of liability
insurance with Developer, prior to execution of
contract, for a combined single limit policy
with aggregate limits in the amount of
$1, 000, 000, or as approved by the Engineer. The
City shall be named as an additional insured.
f . Requirement for lowest responsible bidder to
file a signed Certificate of Worker' s
Exhibit D - 1 To Lease
Compensation Insurance, prior to execution of
the contract, as set forth in Section 7-4 of of
the Standard Specifications for Public Works
Construction.
g. Requirement for lowest responsible bidder to pay
prevailing wages in accordance with the Davis-
Bacon Act and the California Prevailing Wage
Law.
h. Space for bidders to sign, and to enter
Contractor' s License Number and Type. All
successful bidders shall have the appropriate
California Contractor' s License for the work to
be done.
i. Lowest responsible bidder shall obtain a
Business Registration Certificate from the City
Clerk' s Office prior to starting work.
j . Contractor shall indemnify and hold harmless the
City, their officers, agents, volunteers and
employees from and against any and all claims,
demands, loss or liability of any kind or nature
which the City and/or their officers, agents,
volunteers or employees, may sustain or incur or
which may be imposed upon them, for property
damage and injury to, or death of any persons
caused by the Contractor' s negligence, and for
any costs or expenses incurred by the City on
account of any claim therefore.
3 . Notice Inviting Bids shall be published twice in The Sun. The
first publication shall be at least 14 calendar days prior to
the date bids are to be received, with the second five (5) days
later.
4 . Plans and contract documents shall be provided to the
construction trade newspapers on the list provided by the
Engineer.
5 . Sealed bids will be received at the place indicated in the
Notice Inviting Bids, opened and announced at the specified
time. The bid opening shall be open to the public.
Exhibit D - 2 To Lease
6 . The Developer shall submit a Report of bids received to the
Engineer for verification that the bid prices are consistent
with those received on City Public Works projects . After
verifying consistency, the Engineer will provide Developer with
a written statement concurring with awarding a contract .
7 . Developer shall conduct a pre-construction conference prior to
work being commenced, with the Contractor, utilities, Assessment
Engineer, and any other affected parties .
8 . Developer may submit monthly requests to the Engineer for the
portion of the work completed by Contractor, if provision for
such progress payments is contained in the Joint Development
Agreement. Requests will be for completed items of work only,
unless waived by the Engineer for large items of work. After
verifying that the work for which payment is requested has been
satisfactorily completed, the Engineer will approve the request
and forward to the City Finance Department for payment .
9 . Progress payments made by the City will not include any amount
for interest.
10 . After all items of work have been completed by the Contractor,
and accepted by the Engineer, a Notice of Completion shall be
recorded by Developer.
11. An amount of 100 of all payments shall be retained by City.
This retention will be paid to Developer 35 days after the
Notice of Completion is recorded.
12 . In the event that a STOP NOTICE is filed by a subcontractor,
material supplier or employee, the amount listed in the STOP
NOTICE will also be retained by the City, until a release is
received.
13 . The Standard Operating Procedures, for implementation of the
City' s Minority Business Participation Program shall not apply,
since this is not a City contract.
14 . Developer may submit a written bid along with other bidders,
provided that the appropriate California Contractor' s License
has been obtained.
Exhibit D - 3 To Lease
15 . Developer reserves the right to reject any or all bids. The
lowest bid may not be accepted. Developer reserves the right to
complete the work with its own forces should it be deemed in the
best interest of the overall Project .
16 . The Project shall be bid in two separate packages . The first
package shall relate to demolition and grading only. The second
package shall consist of all remaining work. Notwithstanding
the two separate bid packages there shall only be one general
contractor for the Project .
Exhibit D - 4 To Lease
EXHIBIT "D" TO JOINT DEVELOPMENT AGREEMENT
OPERATIONS MANUAL
This Operations Manual ("Manual") has been developed and jointly
agreed upon by the Parks Department and CYSA-S' s nominee and
establishes criteria relative to the operation of the Property by
CYSA-S' s nominee, including without limitation, the criteria defined
in Chapter 12 . 80 .
1. Short title.
The regulations codified in this Manual shall be known as the
Patton Park Regulations.
2 . Definitions.
"Chapter" is hereby revised to read "Manual" .
B. "Building" means any building or portion thereof located
on the Park and under the supervision of CYSA-S' s nominee.
C. "CYSA-S' s nominee" refers to
(The term "Director" is hereby deleted from and shall not
be a part of this Manual . )
D. "Park" includes all grounds, roadways, avenues, park
facilities and playground areas, or portions thereof,
located on the Park and which are under the supervision of
CYSA-S' s nominee.
E. "Permit" means a permit for exclusive use of the Park or
any building located thereon.
3 . Use of Park and Buildings exclusive.
The Park, including any Buildings located thereon, may be made
available for the exclusive use of persons subject to the issuance of
a permit by CYSA-S' s nominee as provided for in this Manual .
4. Permit.
It is unlawful for any organized group, person, firm,
corporation or society, to conduct any picnic, celebration, parade,
service or exercise in the Park or Building or use any Park facility,
without first obtaining a written permit from CYSA-S' s nominee, as
provided for in this Manual .
5. Park and recreation-sponsored classes -- permit required.
This Section is hereby deleted from and shall not apply to this
Manual .
Exhibit D - 1 To JDA
6 . Application for Permit
Any person, firm, corporation, society or organization applying
for a permit shall file an application for such permit with CYSA-S' s
nominee, not less than ten days nor more than one year prior to the
proposed use of the Park or Buildings located thereon. . .
E. Additional CYSA-S nominee facilities requested, including
but not limited to personnel and equipment;
H. In the event the proposed activity is a CYSA-S nominee
sanctioned or approved class or course of instruction, the
proposed fees that are to be charged for the classes or
courses of instruction.
I . Such other information as shall be required by CYSA-S' s
nominee.
7 . Issuance of permit.
A. -D.References to "The Director" are hereby revised to read
"CYSA-S' s nominee" .
E. Upon the advice of the Chief of Police, CYSA-S' s nominee
may impose a requirement of one crowd control monitor per
fifty persons, up to a maximum of 8, 000 persons expected
to attend the proposed activity. . . .
References to "the Director is hereby revised to read
"CYSA-S' s nominee" .
F. -G.These Sections are hereby deleted from and shall not
apply to this Manual .
8. Denial of permit.
A. "The director" is hereby revised to read "CYSA-S' s
nominee" .
1. That the application reveals that the Park or the
Buildings located thereon will not accommodate the
activity of the applicant .
9 . The permit applied for is for the purposes of holding
classes or courses of instruction or activity in the
Park for fees for any program not approved, sponsored
or sanctioned by CYSA-S' s nominee.
B. "The director" is hereby revised to read "CYSA-S' s
nominee" .
9. Right of approval of denial of permit or conditions imposed on
issuance of permit.
This Section is hereby deleted from and shall not be a part of
this Manual .
Exhibit D - 2 To JDA
10 . Fees and deposits.
A. Upon granting of a permit under this manual, any fees or
deposits required for the use of CYSA-S nominee personnel
or the Park, Buildings, equipment and facilities located
thereon shall be paid by the applicant to CYSA-S' s nominee
no later than three working days before the activity is to
be held. . .
"The Director" is hereby revised to read "CYSA-S' s
nominee" .
B. CYSA-S' s nominee shall establish a fee schedule for the use
of the Park and Buildings located thereon and for the
rental or use of equipment, facilities and personnel .
Copies of the fee schedule shall be made available to the
public by CYSA-S' s nominee.
11. Liability.
The words "and CYSA-S' s nominee" is hereby added after each
reference to "the City" .
12 . Displays and sales.
It is unlawful for any person to sell or offer for sale any
merchandise, article or thing of any kind or nature whatsoever in the
Park, or Buildings located thereon, under the supervision of CYSA-S' s
nominee, unless such persons posses a written document from CYSA-S' s
nominee, consenting to such sale or offer for sale.
13 . Park regulations.
Within the limits of the Park or any facility or Building
located thereon and operated or controlled by CYSA-S' s nominee, it is
unlawful for any person to:
A. "Chapter" is hereby revised to read "Manual" .
1 . "The Director" is hereby revised to read "CYSA-S' s
nominee" .
G. "Director" is hereby revised to read "CYSA-S' s nominee" .
I . -K. "Duly authorized city employee" is hereby revised to
read "an individual duly authorized by CYSA-S' s nominee" .
R. "Any public park within the city" is hereby revised to read
"the Park" .
S. Enter any toilet facility designated for the opposite sex,
excepting therefrom children under the age of six years
when accompanied by his or her parent or legal guardian,
and park employees while acting within the scope of their
duties of cleaning or repairing the toilets; or cut,
Exhibit D - 3 To JDA
deface, or make any writing or marking on the walls of any
toilet facility or structure within the Park.
Application
The name of the Application is hereby revised to read "CYSA-S' s
Nominee Application/Permit To Use Patton Park" .
The reference to "Section 1280 .130, City Municipal Code Applies"
is hereby revised to read "Section 13, Patton Park Operations Manual
Applies" .
The Hold Harmless Agreement is hereby revised to read "applicant
hereby acknowledges that he/she has read, understands and will comply
with all provisions of the Operations Manual pertaining to use of
Patton Park, and the Buildings, equipment and facilities located
thereon. * Applicant hereby assumes all responsibility to leave areas
in a neat and clean condition. Applicant agrees to hold harmless and
indemnify the City of San Bernardino and CYSA-S' s nominee, from any
and all liability for injury to persons or property occurring as a
result of this activity and agrees to be liable to the City and CYSA-
S' s nominee for any and all damage to Patton Park, and the Buildings,
equipment and facilities located thereon, which results from the
activity or permittee or is caused by any participant in said
activity. "
The *Note is hereby revised to read "This permit is subject to
cancellation by any Police Officer or CYSA-S' s nominee who determines
violation of any provision of the Patton Park Operations Manual . "
The signature line for Director, Parks, Recreation & Community
Services is hereby revised to read "CYSA-S' s nominee" .
The reference to "Goldenrod: Risk Mgmt" is hereby deleted.
Exhibit D - 4 To JDA
PUBLIC PARKS AND RECREATIONAL FACILITIES
12.80.040 Permit - Required when group exceeds twenty-five persons.
12.80.050 Park and recreation sponsored classes - Permit required.
12.80.060 Application for permit.
12.80.070 Issuance of permit.
12.80.080 Denial of permit.
12.80.090 Right of appeal of denial of permit or conditions imposed on
issuance of permit.
12.80.100 Fees and deposits.
12.80.110 Liability.
12.80.120 Displays and sales.
12.80.130 Park regulations.
12.80.140 Violation - Penalty.
12.80.010 Short title.
The ordinance codified in this chapter shall be known as the "parks
and recreation ordinance. " (Ord. 3326 § 1, 1973 . )
12.80.020 Definitions.
For the purpose of carrying out the intent of this chapter, the
following words, phrases, and terms shall be deemed to have the meaning
ascribed to them in this section:
A. "Amplified sound" means speech or music, projected or transmitted by
electronic equipment, including amplifiers, loudspeakers, microphones,
bull horns or similar devices which are intended to increase the
volume, range, distance, or intensity of speech or music and are
powered by electricity, battery, or combustible fuel.
B. "Building" includes any building, or portion thereof, under the
supervision of the Parks and Recreation Department of the City.
C. "Director" refers to the Director of the Department of Parks and
Recreation.
D. "Park" includes all grounds, roadways, avenues, park facilities,
municipal parks and playground areas, or portions thereof, under the
supervision of the Parks and Recreation Department.
E. "Permit" means a permit for exclusive use of any park or building, or
portions thereof, as provided for in this chapter.
F. "Person" means persons, groups, associations, partnerships, firms or
corporations unless the context in which such word is used indicates
the singular word person was intended.
(Ord. 3326 § 2, 1973 . )
12.80.030 Use of parks and buildings exclusive.
The City's public parks and buildings, or portions thereof, may be
made available for the exclusive use of persons subject to the issuance of
a permit by the Director as provided for in this chapter. (Ord. 3326 § 3,
1973 . )
Exhibit D - 5 To JDA
12.80.040 Permit Required when group exceeds twenty-five persons.
It is unlawful for any group of persons, firm or corporation, society
or organization which anticipates an attendance of more than twenty-five
persons to conduct any picnic, celebration, parade, service or exercise in
any public park or building or use any park facility, without first
obtaining a written permit from the Director as provided for in this
chapter. (Ord. MC-460, 5-13-85; Ord. 3326 § 4, 1973 . )
12.80.050 Park and recreation sponsored classes - Permit required.
It is unlawful for any person, firm, corporation, society or
organization to hold classes, courses of instruction or any activity where
a fee or any form of compensation is charged or anything of value is
obtained in a park or building, except in accordance with a written permit
issued by the Director for such classes, courses of instruction or activity
sponsored by or approved by the Department of Parks and Recreation pursuant
to the provisions of this chapter. (Ord. MC-460, 5-13-85; Ord. 3525 (part) ,
1975; Ord. 3326 § 4.1, 1973 . )
12.80.060 Application for permit.
Any person, firm, corporation, society or organization applying for
a permit pursuant to Sections 12.80.030, 12.80.040 and 12 .80.050 shall file
an application for such permit with the Director, not less than ten days,
nor more than ninety days prior to the proposed use of the park or building.
Upon a showing of good cause, the Director may waive the ten-day period.
The application shall contain the following information:
A. The name of the sponsoring organization; the name, business address,
and telephone number of the applicant, who shall be held responsible
for the proposed activity;
B. The park, building, or portion thereof, applied for;
C. The starting and finishing time of the proposed activity;
D. The number of people expected to attend;
E. Additional City facilities requested, including but not limited to
personnel, tables and chairs;
F. The nature of the proposed activity or activities, including equipment
and vehicles to be brought into the park, the nature and duration of
the use of such equipment and the nature and duration of the use of
any amplified sound;
G. Estimated number of parking spaces required;
H. In the event the proposed activity is a Department of Parks and
Recreation sanctioned or approved class or course of instruction, the
proposed fees that are to be charged for the classes or courses of
instruction.
I. Such other information as shall be required by the Director. (Ord.
3525 (part) , 1975; Ord. 3326 § 5, 1973 . )
12.80.070 Issuance of permit.
A. The Director shall grant or deny such application within five working
days after its submission, unless the time for such granting or denial
Exhibit D - 6 To JDA
of the permit has been waived by the applicant in writing. The
decision granting or denying the application shall be mailed to the
applicant.
B. Upon the granting of any permit, the director may impose reasonable
requirements and conditions concerning the use of the park or
building, as necessary, to insure that the proposed activity and use
will not unreasonably interfere with or detract from the promotion of
public peace, health, safety and recreation.
C. A permit issued for the use of a building, or part thereof, shall
contain the closing time. Closing times for each building shall be
set by the director and shall be uniformly applied.
D. Upon the issuance of a permit for use of a building, the Director
shall indicate on the permit the occupancy load of the building.
E. Upon the advice of the chief of police, the director may impose a
requirement of one crowd control monitor per fifty persons expected
to attend the proposed activity. The director may require a one-hour
orientation program, to be conducted by the chief of police or his
designee, for crowd control monitors at a reasonable time and place
prior to the proposed activity, which time and place shall be set by
the chief of police or his designee. The applicant shall, within the
time limit specified by the director, submit a list of the proposed
crowd control monitors, including their names, addresses and telephone
numbers. The applicant may, at his option, provide police reserve
personnel or duly licensed private patrolmen, instead of crowd control
monitors, in the numbers approved by the chief of police. In the
event that the applicant provides police reserve personnel, or duly
licensed private patrolmen, no orientation session will be required.
F. The director may grant the use of a permit for a different park than
the one applied for, with the consent of the applicant, in the event
that a permit has already been issued for the requested park, or when
such requested park does not meet the needs of applicant or is
otherwise deemed unsuitable for the purpose of the proposed activity.
G. In the event the permit applied for is for the purposes of holding or
conducting classes, courses of instruction or activity sponsored by
or sanctioned by the department of parks and recreation, upon or in
a park, building or other public property, the director shall only
consider the application for a permit if he finds and determines that
the city department of parks and recreation is sponsoring or sanction-
ing the classes or courses of instruction or activity and that the
program of classes or courses of instruction or activity will
compliment and coordinate with programs established and approved by
the department of parks and recreation. In the event it is so
determined, then it shall be a requirement that the only compensation
allowed or permitted for the program shall be the fees charged for the
classes ore courses of instruction or activity, and the director
shall establish appropriate fees to be charged as a condition to the
issuance of the permit. In establishing the fees, the director shall
consider the fees charged for comparable city department of parks and
Exhibit D - 7 To JDA
recreation sponsored programs and the nature, length and type of
classes or courses of instructions:
(Ord. 3525 (part) , 1975: Ord. 3326 § 6, 1973 . )
12.80.080 Denial of permit.
A. The director may deny the application if he finds that any of the
following, conditions exist:
1. That the application reveals that the city has no park or
building which will accommodate the activity of applicant;
2 . That the chief of police has determined that off-duty police
officers or police reserve officers must be specifically called
to duty, because the proposed activity is of a size or nature
that the diversion of so great a number of police or reserve
officers to properly police the area is required that the
remainder of the city will be without adequate police
protection;
3 . That the applicant refuses to agree, in writing, to comply with
all conditions in the permit;
4. That the applicant failed to file an application within the
appropriate time limits;
5. That the park, facility or building is not available due to
prior reservation thereof;
6. That the applicant or organization has violated Section
12 . 80 .130 within the past two years, whether or not the
violation resulted in a prosecution or conviction;
7. That the applicant or organization has failed to pay the city
for past damages to any park, facility, building, equipment or
furniture, owned or controlled by the city, which damages
resulted from or arose out of the activity of permittee;
8 . When a hazardous condition threatens the participants,
spectators, staff, facility, equipment or building;
9. If the permit applied for is for the purposes of holding classes
or courses of instruction or activity on city property for fees
for any program not approved, sponsored or sanctioned by the
city's department of parks and recreation;
10. That the applicant has failed to comply with any conditions
imposed on any prior permits issued pursuant to the provisions
of this chapter;
11. If the requirements of this chapter and all other laws are not
met.
B. The director shall specify in writing the grounds for the denial of
the permit.
(Ord. 3525 (part) , 1975; Ord. 3326 § 7, 1973 . )
12.80.090 Right of appeal of denial of permit or conditions imposed on
issuance of permit.
Exhibit D - 8 To JDA
A. The applicant may appeal the denial of a permit, or conditions imposed
upon the issuance of a permit, by the director, to the city
administrator.
B. The applicant must file the appeal with the city administrator within
five days of the director's mailing of such decision. The city
administrator shall hold a hearing within three days of the filing of
the appeal, at the office of the city administrator, at which time the
applicant may present any and all evidence, testimony, and information
relevant to the application.
C. In the case of a denial of a permit, the city administrator shall,
within twenty-four hours of the appeal hearing, issue his decision,
either affirming the denial of the application, or directing, the
director of parks and recreation to issue the permit as applied for,
subject to reasonable terms and conditions. When the appeal is taken
on the conditions imposed by the Director of Parks and Recreation, the
City Administrator shall within twenty-four hours of the hearing,
issue his decision either affirming the conditions imposed or
directing the Director to issue the permit with amended conditions.
D. The decision of the City Administrator shall be final and binding;
provided, that the Mayor and Common Council reserves the power to
overrule or modify such decision and to issue or deny the permit.
(Ord. 3326 § 8, 1973 . )
12.80.100 Fees and deposits.
A. Upon granting of a permit under this chapter, any fees or deposits
required for the use of city personnel, parks, buildings, equipment,
and facilities shall be paid by the applicant to the Director no later
than three working days before the date the activity is to be held.
If the fees or deposits are not paid on or by the third day before the
activity is to be held, the permit theretofore issued shall be null
and void; provided, that the Director upon showing of good cause may
permit payment at any time prior to the proposed use.
B The Mayor and Common Council shall establish by resolution a fee
schedule for the use of the public parks and buildings and for the
rental or use of equipment, facilities and personnel. Copies of the
fee schedule shall be made available to the public by the Department
of Parks and Recreation.
(Ord. 3326 § 9, 1973 . )
12.80.110 Liability.
All persons to whom an exclusive use permit has been granted must
agree in writing to hold the City harmless and indemnify the City from any
and all liability for injury to persons or property occurring as a result
of the activity sponsored by the permittee, the persons shall be liable to
the City for any and all damage to any park, facility, building, equipment
and furniture owned or controlled by City, which results from the activity
of the permittee or is caused by any participant in the activity. (Ord. 3326
§ 10, 1973 . )
Exhibit D - 9 To JDA
12.80.120 Displays and sales.
It is unlawful for any person to sell or offer for sale any mer-
chandise, article or thing of any kind or nature whatsoever in any public
park, or recreational facility, including all grounds, roadways, avenues,
park facilities, municipal parks and playground areas, or portions thereof,
under the supervision of the Parks, Recreation and Community Services
Department, unless such person possesses a written document from the
Director of Parks, Recreation and Community Services consenting to such sale
or offer for sale. (Ord. MC-520, 5-19-86; Ord. MC-460, 5-13-85; Ord. 3326
§ II, 1973 . )
12.80.130 Park regulations.
Within the limits of any public park or playground in or upon any
facility or building located therein and owned or controlled by the City,
it is unlawful for any person to:
A. Cause the amplification of sound exceeding twenty-five watts total
output from all channels of equipment used except pursuant to an
exclusive use permit issued under this chapter and subject to the
following conditions:
1. The location of any bandstand and the position of each
loudspeaker shall be as specified by the Director so as to allow
the least amount of amplified sound to be audible in any
adjacent residential neighborhoods.
2 . Amplified sound shall not exceed ninety-five decibels (dba) at
a point fifty feet in front of the center point of the distance
between loudspeaker installations.
B. Play or practice golf or use golf clubs in any area not designated for
such use;
C. Operate any motor driven model airplane except in areas designated for
such use;
D. Operate or park any motor vehicle as defined in the California Vehicle
Code within a park except upon areas designated for such use;
E. Operate, drive, or ride upon any bicycle, unicycle, tricycle, horse
or any other animal in any park except in areas designated and posted
specifically for such use;
F. Leave any garbage, trash, cans, bottles, papers or other refuse
elsewhere than in the receptacle provided therefor;
G. Use or attempt to use or interfere with the use of any table, space
of facility which at the time is reserved for any other person or
group which has received a permit from the Director for the use
thereof;
H. Discharge or shoot any firearm, air gun, slingshot, or bow and arrow
except at places designated and posted specifically for such purposes;
I. Dig, remove, destroy, injure, mutilate or cut any tree, plant, shrub,
bloom or flower, or any portion thereof except a duly authorized city
employee in the performance of his duty;
J. Remove any wood, turf, grass, soil, rock, sand or gravel from any park
except a duly authorized city employee in the performance of his duty;
Exhibit D - 10 To JDA
K. Cut, break, deface, or disturb any rock, building, cage, pen,
monument, sign, fence, structure, apparatus, equipment or property
except a duly authorized city employee in the performance of his duty;
L. Light or maintain any fire unless such fire is lighted and maintained
only in a stove or fire circle or place provided for such purpose;
M. Throw rocks and waste matter in unauthorized places;
N. Bathe or wade in or otherwise pollute the waters of any pond, stream,
lake or pool unless wading or bathing are allowed in designated
streams or pools or portions thereof;
0. Frighten, chase, set snare for, catch, injure or destroy any wild
quadrupeds or birds; or destroy, remove or disturb any of the young
or eggs of same, or to injure or maltreat any domestic or other
animals;
P. Camp, lodge or tarry overnight unless there are set aside certain
places for this purpose; the provisions of Section 12 .68. 020
regulating loitering and tarrying in any public park is adopted by
reference;
Q. Indulge in riotous, boisterous or indecent conduct, and no noisy,
disorderly or offensive person shall be allowed within the park; the
provisions of Chapter 9.32 prohibiting any person from drinking
alcoholic beverages in a public place is adopted by reference;
R. Roller skate or bicycle upon tennis courts in any public park within
the city; and
S. Enter any toilet facility designated for the use of female persons
within any public park or go into the vault of or be within such
toilet facility, excepting therefrom females, boys under the age of
six years, and park employees while acting within the scope of their
duties of cleaning or repairing the toilets; or cut, deface, or make
any writing or marking on, the walls of any toilet facility or
structure within any public park.
(Ord. MC-460, 5-13-85; Ord. 3643, 1977; Ord. 3326 § 12, 1973) .
12.80.140 Violation -Penalty.
Any person, firm or corporation violating or causing the violation of
any provision of this chapter is guilty of a misdemeanor, which upon
conviction thereof is punishable in accordance with the provisions of
Section 1. 12.010 of this Code. (Ord. MC-460, 5-13-85; Ord. 3326 § 13,
1973 . )
Exhibit D - 11 To JDA
PARKS, RECREATION AND COMMUNITY SERVICES
APPLICATION/PERMIT
TO USE PUBLIC PARK OR RECREATION FACILITY
Date of Application:
Name and Address of Applicant/Organization:
Facility
Requested:
Date of Activity: Time of Activity: A.M./P.M. To A.M./P.M.
Nature of Activity/Event:
Describe Planned Activities:
Estimated Attendance: Is Activity Open to the Public? Admission Fee?
Will Sound Amplification or Public Address System be Used?
Time of Day Amplifier is to be Used: A.M./P.M. To A.M./P.M.
(Section 12.80.130, City Municipal Code Applies.)
HOLD HARMLESS AGREEMENT
Applicant hereby acknowledges that he/she has read, understands, and will comply with all provisions
of Chapter 12.80, Municipal Code, City San Bernardino, California pertaining to use of Park and
Recreation facilities. * Applicant hereby assumes all responsibility to leave areas in a neat and clean
condition. Applicant agrees to hold harmless and indemnify the City of San Bernardino, California, from
any and all liability for injury to persons or property occurring as a result of this activity and
agrees to be liable to said City for and all damage to any park, facility, building, pool, equipment,
and furniture owned or controlled by City, which results from the activity or permittee or is caused
by any participant in said activity.
Signature of Applicant
*NOTE: This permit is subject to AVAILABLE: YES NO
cancellation by any Police Officer who SPECIAL CONDITIONS APPLY: YES NO
determines violation of any provision of FEES/DEPOSIT(S) REQUIRED: YES NO
the City Municipal Code FEES: RECEIVED BY:
ON RECEIPT #: BY:
CLEANING DEPOSIT: If area/facility is DEPOSIT(S) : RECEIVED BY:
not left in clean condition, the deposit DEPOSIT RETURNED TO: DATE:
shall be forfeited. ❑ APPROVED ❑ DISAPPROVED DATE:
KEY DEPOSIT: Keys shall be returned Director, Parks, Recreation & Community Services
within two (2) working days after the DISTRIBUTION:
event for which the key(s) is issued. WHITE: DEPT./FACILITY
If key(s) is not returned promptly, the GREEN: APPLICANT/USER
deposit shall be forfeited. CANARY: DEPOSIT FILE
PINK POLICE DEPT.
GOLDENROD: RISK MANAGEMENT
Printed Name of Applicant
Address
City Zip Phone Number
Signature of Applicant
Exhibit D - 12 To JDA
EXHIBIT "E" TO JOINT DEVELOPMENT AGREEMENT
SCHEDULE OF PERFORMANCE
1 . Execution of Agreement and August 1996 . (The effective
Lease. City, Agency and Empire date of the Lease shall be
shall approve and execute this August 1, 1997 . )
Agreement . City and CYSA-S' s
nominee shall approve and
execute the Lease.
2 . Grading Plans. Empire Not later than September 15,
shall finalize grading plans and 1996 .
bid the mass grading of the
site.
3 . Removal of Communitv Not later than October 14, 1996 .
Garden; Removal of Existing
Structures; Commencement of
Grading. Empire shall remove
the existing community garden
which is currently located on
the Property. Empire shall
remove all existing structures
(including any asbestos
contained therein) from the
Property, including without
limitation, the storage
compartments. Empire shall
commence grading.
4 . Construction Plans. Empire Not later than November 1, 1996 .
shall finalize construction
plans and bid the remainder of
the Project construction.
5 . Substantial Completion of Not later than March 1, 1997 .
Construction and Installation.
Empire shall complete
approximately fifty percent
(500) of the construction and
Exhibit E - 1 To JDA
installation of the Improvements
on the Property.
Not later than May 1, 1997 .
6 . Completion of Construction
and Installation. Empire shall
complete construction and
installation of the Improvements
on the Property.
Not later than sixty (60) days
7 . Certificate of Completion. after Empire has completed
City shall obtain a Certificate construction and installation of
of Completion and provide a copy the Improvements on the
to Empire. Property, presented to the City
a Certificate of Occupancy for
the Property, and tendered a
written request to the City for
a Certificate of Completion.
Exhibit E - 2 To JDA
EXHIBIT "F" TO JOINT DEVELOPMENT AGREEMENT
CERTIFICATE OF COMPLETION
When Recorded, Mail to:
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Attention: Mayor Tom Minor
CERTIFICATE OF COMPLETION
I, Tom Minor, Mayor of the City of San Bernardino ("City")
hereby certify as follows :
By its motion, adopted and approved 1997, the
City has resolved as follows :
Section 1. The removal and reconfiguration work and the
improvements described in the Scope of Development (Exhibit "B")
required to be constructed and installed in accordance with that
certain Joint Development Agreement ("Agreement") dated August _,
1996 by and among the City, the Redevelopment Agency of the City
("Agency") , and Empire A/G Recreation, LLC ("Empire") on that certain
real property more fully described in Exhibit "A" , attached hereto
and incorporated herein by this reference ("Property" ) , has been
completed in accordance with the provisions of the Agreement .
Section 2 . This Certificate of Completion shall constitute
a conclusive determination of satisfaction of the agreements and
covenants contained in the Agreement with respect to the obligations
of Empire, and its successors and assigns, to remove the existing
community garden which is currently located on the Property, remove
existing structures (including any asbestos contained therein if
necessary) from the Property, and construct and install the
Improvements (as defined in the Agreement) on the Property, and the
dates for the beginning and completion thereof (excluding any normal
and customary tenant improvements and minor "punch list" items) ;
provided, however, that the City and the Agency may enter the
Property for purposes of enforcing any covenant of the Agreement and
Exhibit F - 1 To JDA
shall have the right to offset such expenditures against sums
otherwise due to Empire pursuant to the Agreement . Said Agreement is
an official record of the City and a copy of the Agreement may be
inspected in the office o f the City Clerk located at 300 North "D"
Street, San Bernardino, California 92402, during regular business
hours .
Section 3 . The Property to which this Certificate of
Completion pertains is more fully described in Exhibit "A" , attached
hereto and incorporated herein by this reference.
DATED AND ISSUED this day of 1997 .
Mayor of the City of San Bernardino
(SEAL)
ATTEST:
City Clerk
Exhibit F - 2 To JDA
EXHIBIT "A" TO CERTIFICATE OF COMPLETION
LEGAL DESCRIPTION OF THE PROPERTY
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Exhibit A - 1 to Certificate of Completion
EXHIBIT "G" TO JOINT DEVELOPMENT AGREEMENT
CITY OF SAN BERNARDINO MUNICIPAL SPORTSPLEX
Phase 1 - Patton Park
Construction Cost Budget
Community Gardens Relocation . . . . . . . . . . . $ 88, 000 . 001
Surveying . . . . . . . . . . . . . . . . . . . . . . . 32, 000 . 00
Soil Engineer & Testing . . . . . . . . . . . . . . . . 25, 000 . 00
Grading/Demolition . . . . . . . . . . . . . . . . . 195, 000 . 00
Site Drainage . . . . . . . . . . . . . . . . . . . . . 80, 000 . 00
Sewer Lines & Tap . . . . . . . . . . . . . . . . . . . 34, 000 . 00
Water Lines . . . . . . . . . . . . . . . . . . . . . . 27, 000 . 00
Gas Distribution . . . . . . . . . . . . . . . . . . . 6, 000 . 00
Tournament Host Facilities . . . . . . . . . . . . . 35, 000 . 002
Site Concrete . . . . . . . . . . . . . . . . . . . . . 95, 000 . 00
Striping, Signage & Wheel Stops . . . . . . . . . . . . 5, 500 . 00
Asphalt . . . . . . . . . . . . . . . . . . . . . . . 162, 000 . 00
10 Foot Landscape Buffer - Arden/Pacific . . . . . . . . 19, 800 . 00
Field Underground Drainage . . . . . . . . . . . . . 296, 000 . 00
Topsoil/Amendments . . . . . . . . . . . . . . . . . 303, 000 . 00
Landscaping . . . . . . . . . . . . . . . . . . . . . 467, 000 . 00
Play Surface & Equipment . . . . . . . . . . . . . . . 35, 000 . 00
Fencing . . . . . . . . . . . . . . . . . . . . . . . 120, 000 . 00
Signage . . . . . . . . . . . . . . . . . . . . . . . . 18, 000 . 00
Site Furnishings . . . . . . . . . . . . . . . . . . . 35, 000 . 00
Field Equipment . . . . . . . . . . . . . . . . . . . . 24, 000 . 00
Field Lighting . . . . . . . . . . . . . . . . . . . 205, 000 . 00
Parking Lot Lighting . . . . . . . . . . . . . . . . . 31, 000 . 00
Electrical . . . . . . . . . . . . . . . . . . . . . . 40, 000 . 00
Asbestos Abatement . . . . . . . . . . . . . . . . . . 40 . 000 . 00
Buildings (2 @ $145, 000 . 00) . . . . . . . . . . . . . 290, 000 . 00
Subtotal $ 2 , 708 , 300 . 00
Contingency @6 . 501 176,039 S03
Total $2 , 884 , 339 . 50
Design . . . . . . . . . . . . . . . . . . . . . . . 115, 000 . 00
1 Does not include main water line and water acquisition fees, as agreed to by
the City's Water Department. At the City's option, this item may be
performed by the City's Public Works Department, or may be independently
bid.
2 35 parking spaces for RVs to be used exclusively by tournament hosts and
vendors.
3 Limited to unforseen conditions or problems with the plans. Any City
requested upgrades to be paid by the City.
Exhibit G - 1 To JDA
Connection Fees (incl . water, sewer, gas & electric) 125, 000 . 00
Real Estate Commission . . . . . . . . . . . . . . . 144 , 696 . 00
Grand Total $ 3 , 269, 035.501
1 Total costs do not include certain fee waivers and costs for off-site
improvements, including but not limited to, the widening of Arden Avenue.
Such costs, if any, will be addressed as the need arises.
Exhibit G - 2 To JDA
San Bernardino
August 16, 1996
Dear Mayor and City Council Members,
It is with great pleasure and interest that I write to you with regards to the proposed
soccer complex up on Highland Avenue. With no hesitation at all I would have to give a
big "yes" on going through with the project. An opportunity such as this does not come
around very often and when it does we should not let it go to waste!
I have een the ' nera'A atuger o the Hilton Hotel over here on Lune for not
t f
quite two years. In that time I've served on the board of the Convention and Visitors
Bureau been involved with the Western Division Playoffs of the Little League and have
been involved with many other civic and private events. Everything I've seen and learned
around those events tells me that the amount of business and dollars this proposed soccer
facility would bring to San Bernardino would out produce most other events that are
currently happening. With a minimum of twelve soccer tournament a year and an average
of 150 teams at each tournament the city would theoretically attract 36,000 visitors
throughout the year (minimum). This in turn could generate into revenues of around
$2,000,000.00 for all of the hotels in San Bernardino. A 10% T.O.T. on those revenues
could produce an additional $200,000.00 for our city each year!
I could go on and on with more reasons why the city should move forward with this soccer
facility but I think you get the point. Please move forward and don't hesitate to get this
project completed It will be something good our city can count on!
Sincerely yours,
sbr
Entered into Record at �.
�Tim Je ns CouncillCmyDevCms Mtg:
Ge al Manager by
re Ageiioii 1Fl,Ot
TJ/sm
City ClerkICDC Secy
City of San Bernardino
Executive Offices,285 East Hospitality Lane,San Bernardino,California 92408 Telephone 909-889-0133
Reservations 1-800-HILTONS �' r