Loading...
HomeMy WebLinkAboutContracts & Agreements_166-2001_CCv0001.pdf PLANNING, DESIGN AND CONSTRUCTION CONSULTING SERVICES AGREEMENT (REDLANDS) THIS PLANNING, DESIGN AND CONSTRUCTION CONSULTING SERVICES AGREEMENT (this -Agreement") is entered effective December 4 , 2001 by and between the CITY OF REDL ANDS, a municipal corporation (the"City") and BIG LEAGUE DREAMS USA, LLC, a California limited liability company("BLD"). RECITALS A. The City owns approximately 120 acres of real property located at the northwest comer of San Bernardino Avenue and Wabash Avenue in the City of Redlands (the "Property"). On approximately 56 acres of the Property, the City intends to construct a high quality,multi-purpose recreational sports complex to be known as the "Redland Sports Complex, a Big League Dreams operated facility" (the "Sports Complex"), presently anticipated to include (1) at least six fully lighted, FIFA dimension soccer fields; (2) at least three fully lighted youth baseball/adult softball fields; (3)) a covered structure for indoor soccer, indoor volleyball, inline hockey, basketball and other group event uses-, (4) a children's playground and picnic area; (5) a nine station batting cage combined with an instructional academy area; (6) four sand/beach volleyball courts; (7) a maintenance facility; (8) parking for 500 cars; (9) walkways and other public ingress/egress and access areas-, (10) restrooms; (11) a sports-themed, family style Stadium Club food and beverage concession facility; and (12) administrative offices, including a retail.pro shop (collectively, the -Sports Complex Improvements")for the primary benefit of the citizens of Redlands. To do so,the City requires the expertise of a company experienced in the planning and design (Phase 1) and construction (Phase 2) of such facilities. BLD has such expertise. The City wishes by this Agreement to engage BLD to provide such planning,design and construction consulting services to help it develop the Sports Complex and construct the Sports Complex Improvements. B. The City also wishes to contract the maintenance and operations of the Sports Complex to an experienced company. BLD has such experience. Accordingly, within sixty(60) days from the execution of this Agreement, the City and Big League Dreams Redlands, LLC, an affiliate of BLD ("BLD Redlands"), will enter good faith negotiations for (1) a long term maintenance and operations agreement with respect to the Sports Complex and the Sports Complex Improvements by which BLD Redlands shall (a) maintain the Sports Complex and the Sports Complex Improvements, (b) program sports and recreational play on the fields and courts to be constructed at the Sports Complex and (c) operate the Sports Complex, including the food and beverage concession facilities, in return for a minimum annual maintenance and operations fee and a share of operating profits, if any(the"Maintenance and Operations Agreement"),and(2)a license agreement by which BLD will license the use of the name "Big League Dreams" in connection with certain aspects of the design and construction of the Sports Complex and other intellectual property rights held by BLD to the City for use in connection with the Sports Complex(the"License Agreement"). In the event the City is not able to secure financing for the Sports Complex Improvements on terms and conditions reasonably acceptable to the City, the City shall, prior to the execution of the Maintenance and Operations Agreement and the License Agreement,have the right to terminate this Agreement upon the terms and conditions herein provided. C. The City also contemplates constructing additional soccer fields on the Property to be operated and maintained by the American Youth Soccer Organization (the"AYSO Fields"). BLD Redlands shall not have any maintenance or operations responsibilities in connection with the AYSO Fields,but shall work-with the City and the AYSO to coordinate the planning,design,construction, maintenance and operation of both the AYSO Fields and the Sports Complex. IT IS AGREED AS FOLLOWS: 1. Contract for Services The City hereby retains BLD to render, and BLD agrees to provide, planning and design (Phase 1) and construction (Phase 2) advice and consulting services (the "Consulting Services") to assist the City in developing the Sports Complex. BLD covenants with the City to furnish its skill and judgment and to work with the City's architects, engineers, vendors and contractors in furthering the interests of the City. The Consulting Services to be provided by BLD during the planning and design phase(Phase 1) are as described in Exhibit A and shall commence upon execution of this Agreement. The Consulting Services to be provided by BLD during the construction phase (Phase 2) are also described in Exhibit A and shall commence upon the award of a contract by the City to a general contractor to build the Sports Complex and the Sports Complex Improvements. BLD shall not be obligated to provide services which only licensed architects or engineers may provide. BLD shall deliver the Previous Plans(as defined in Exhibit A) as part of the Consulting,, Services. 2. Term and Termination Unless sooner terminated as provided in this Section 2, this Agreement shall commence upon its execution and shall continue until the last day of the month ID immediately following completion of construction of the Sports Complex Improvements, as evidenced by the issuance of a certificate of occupancy(the "Term"). 2.1 Bankruptcy or Dissolution Either party may terminate this Agreement immediately upon written notice in the event the other files or has an action filed against it for bankruptcy which is not withdrawn or stayed within sixty (60) days. The City may terminate this Agreement immediately upon written notice in the event of the dissolution of BLD. Breach If either party, after (a) receipt of written notice from the other specifying the nature of an actual breach of this Agreement and (b) the expiration of a fifteen(15) day period(which may be extended,as applicable,in the event the cure may-not be completed within fifteen(15)days but the party seeking to cure the breach commences the cure within the fifteen(15) day period and thereafter diligently works to complete the cure until it has done so) during which the breach may be cured falls or refuses to remedy the specified breach, the other party may terminate this Agreement effective upon thirty(30) days' written notice. 2.3 Phase I Earlv Termination If. during Phase 1, the City is unable to obtain financing for the Sports Complex Improvements on terms and conditions reasonably satisfactory to it, or is unable, in good faith, to negotiate mutually acceptable terms of the Maintenance and Operations Agreement or the License Agreement with BLD, then the City shall have the right to terminate this Agreement on written notice to BLD effective thirty days after such notice is given (a"Phase 1 Termination"). In the event of a Phase I Termination,BLD shall be paid,at a minimum, on or before the effective date of the Phase I Termination, Consulting Fees (as defined in Section 3) equal to(a)one hundred sixty thousand and two dollars($160,002),which is an amount equal to six monthly installments of the Consulting Fees, less(b)the total of all Consulting Fees previously paid to BLD as of the date notice of the Phase I Termination is given. In the event BLD shall already have been paid $160,002 or more In Consulting Fees as of the date notice of a Phase I Termination is given, the City shall only be obligated to pay BLD such additional Consulting Fees which are either (a) owing but unpaid to BLD as of the date notice of the Phase I Termination is given or(b)which become due to BLD pursuant to Section 3 prior to the effective date of the Phase I I Termination. A termination of this Agreement by the City pursuant to Section 2.1 or 2.2 shall not be considered a Phase I Termination. In the event of a termination pursuant to Section 2.1 or 2.2, the City shall only be obligated to pay BLD such additional Consulting Fees which are either (a) ZD owing but unpaid to BLD as of the date notice of such a Section 2.1 or 2.2 termination is given or I (b) which become due to BLD pursuant to Section 3 prior to the effective date of the termination pursuant to Section 2.1 or 2.2. 3. Compensation For the Consulting Services described herein,the City shall pay to BLD(a)planning,design and construction consulting fees(the"PDC Fees")in an amount equal to two hundred fifty thousand dollars($250,000)and(b)a fee equal to one hundred and fifty thousand dollars ($150,000) for the delivery of the Previous Plans (as defined in Exhibit A) to the City(the "Plans Fee"). The PDC Fees and the Plans Fee collectively may be referred to herein as the "Consulting Fees". Provided this Agreement has not sooner been terminated as provided in Section 2, the total of all Consulting Fees to be paid to BLD shall be four hundred thousand dollars ($400,000). The Consulting Fees shall be payable in fourteen (14) installments in the amount of twenty six thousand six hundred and sixty seven dollars ($26,667) each, and a final installment in the amount of twenty six thousand six hundred sixty two dollars ($26,662). The first twelve (12) installment payments are payable in advance on the first day of each month commencing with the first month after the effective date of this Agreement. The thirteenth and fourteenth installment payments are payable in advance on the first day of each month commencing with the first month after (a) the award of a contract by the City to build the Sports Complex and the Sports Complex Improvements and (b) all of the first twelve installments have become payable to BLD. The fifteenth and final installment payment shall not be due until the first day of the month immediately following the month in which the Sports Complex Improvements are completed, as evidenced by the issuance of a certificate of occupancy. In the event Phase I and Phase 2 together take longer than fourteen(14)months to complete,BLD shall be entitled to no Consulting Fees beyond the fourteen (14) installment payments payable as provided above (a total of$373,338) until construction is completed, at which time the fifteenth and final payment shall be due as provided in the previous sentence. In such an event, BLD shall nonetheless be obligated to continue to provide Consulting Services through the completion of construction without additional compensation. In the event Phase I and Phase are completed in less than fifteen(15)months,the difference between the total of all Consulting,Fees to which BLD is entitled under this Agreement and the aggregate amount of all Consulting,Fees paid to BLD by the City as of the date of completion shall be paid by the City to BLD on the first day of the first month following the completion of construction. In the event this Agreement is terminated as a result of a Phase 1 Termination or otherwise as provided in Section 2 prior to completion of the Sports Complex Improvements, BLD shall be entitled to retain all Consulting Fees already paid and to receive all Consulting Fees otherwise due in accordance with the payment schedule set forth in this Section 3 through the effective date of termination. 3 4. Use of Plans and Specifications (a) Subjectto Section 4(b),this Agreement creates anon-exclusive and perpetual right for the City to copy,use,modify or reuse, in connection with the Sports Complex, any and all plans, specifications, studies, drawings, estimates and other documents or works of authorship fixed in any tangible medium of expression,including but not limited to,physical I it I drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared by or for BLD under this Agreement. BLD shall have the right at any time, in connection with any other sports park or facility which BLD or any affiliate of BLD may design, build, own, lease, manage, consult with respect to or otherwise be associated with now or in the future,to use all design concepts,plans and project specifications prepared by or for the City in connection with the Sports Complex. (b) BLD represents that it has a proprietary interest in the look, design, style, shape,color scheme and architecture of Big League Dreams Sports Parks,including,without limitation, the concession facility design and layout (the "Concession Design"). Further,BLD represents that it has certain intellectual property rights in the name "Big League Dreams"and in the Bi-League Dreams logo and marks(collectively the"Name and Marks"). By the License Agreement,the City will be licensed certain rights with respect to the Concession Design and the Name and Marks for use with the Sports Complex. No license of any kind with respect to such is granted to the City by this Agreement. 5. Right to Assignment Each party shall have the right to assign its rights and obligations under this Agreement only to an affiliate of such party. Affiliates of BLD shall include any entity which owns or controls, or which is owned or controlled by, or which is under common control with, BLD. Affiliates of the City shall include its Redevelopment Agency or any other governmental entity controlled by the City of Redlands. Z:I 1 6. Relationship of Parties The relationship of BLD to the City shall at all times be that of an independent contractor. No partnership,joint venture or similar relationship has been formed or is contemplated,nor shall either the City or BLD be deemed a guarantor of the obligations or liabilities of any other person or entity. BLD and its affiliates may continue to conduct other business activities with other municipalities. BLD shall,however,expend sufficient time and devote sufficient resources to properly perform BLD's obligations under this Agreement. No employee of BLD shall be entitled to any benefits accorded by the City to the City's employees, including, without limitation, workers' compensation, disability insurance, pension or retirement benefits, health insurance,vacation or sick pay,it being agreed that such benefits,if any,to be made available to employees of BLD shall be made available by BLD at BLD's own expense. This Agreement ,gives no rights or benefits to anyone not named as a party to this Agreement, and there are no third party beneficiaries to this Agreement. 7. Manner of Performance BLD represents and warrants that BLD has the qualifications, experience and ability to perform this Agreement in a professional manner and without the supervision or control of the City. BLD shall provide properly qualified and experienced personnel to perforin BLD's obligations under this Agreement. BLD shall have the sole discretion and control over the manner, method, details and means of its performance of the Consulting 4 Services. BLD shall furnish the City with periodic briefings as the City reasonably may request pertaining to the Consulting Services and any other matters covered by this Agreement. Z� 8. Representations and Warranties BLD represents and warrants to the City as follows; (a) It is,and will continue to be throughout the Tenn,a limited liability company, duly organized, validly existing and in good standing under the laws of the State of California with all requisite power and authority to perform the services required of it hereunder; (b) There is notpending any suit,action,arbitration,proceeding or governmental investigation against or adversely affecting BLD which would or could materially impair the ability of BLD to perform the services required of it hereunder; (c) It is not in violation or default with respect to any judgment, order, writ, injunction or decree of any federal, state or local court, department,city or instrumentality, the consequence of which would have a material adverse effect on the business operations of BLD; and (d) The consummation and completion of the services to be performed under this Agreement twill not result in or constitute a default or an event that,with notice or lapse of time or both, would be a default, breach or violation of(1) the Articles of Organization of BLD, or(11) any material agreement, instrument or arrangement to which BLD is a party or bound. 9. Indemnification BLD shall indemnify, defend and hold harmless the City and its elected and appointed officials,officers and employees and volunteers(individually and collectively the "Indemnitees"), from and against any and all liabilities, claims, actions, proceedings, suits, damages,judgments,costs and expenses ofwhatever nature,including reasonable attorneys'fees and disbursements(collectively"Claims"),which the Indemnitees may suffer and incur or to which the Indemnitees may become subject by reason of or arising out of any injury or death of any person(s) or any damage to property occurring as a result of the negligence or willful acts or omissions of BLD, its agents, officers, members, directors or employees in performing any of the Consulting Services under this Agreement during the Term. This indemnity shall not apply to any Claims which arise out of or otherwise occur as a result of the sole negligence or willful acts or omissions of the Indemnitees or any agent,representative or contractor of such Indemnitees or of any third party. This indemnity also shall not apply to any lawsuit or other action or proceeding brought by any third party pursuant to the California Environmental Quality Act or otherwise challenging this Agreement(or the Maintenance and Operations Agreement or the License Agreement) or the Sports Complex proj ect. 10. Insurance Requirements BLD shall procure and maintain the following insurance and comply with the following insurance related requirements at all times during the Term: 10.1 Coverage BLD shall procure and maintain the following insurance: 5 (a) Comprehensive public general liability insurance,including without limitation bodily injury,personal injury and property damage, in an amount not less than two million I dollars($2,000,000) single limit per occurrence. The City and its officers, elected officials and employees shall be named as additional insureds. (b) Worker's compensation insurance in amounts specified by law. 10.2 Evidence and Cancellation BLD shall provide certificates to the City evidencing the insurance it is required to obtain in Section 10.1. All policies of insurance to be maintained by BLD pursuant to this Section 10 shall, to the extent obtainable, have attached an endorsement that such policy shall not be canceled or materially changed without at least thirty(30) days pniorwnitten notice to the City. If such endorsement is not obtainable from the insurer(s),BLD shall provide the City with such thirty(30) day prior written notice. 10.3 Blanket Insurance Any insurance policies to be provided by BLD under this Section 11 may be effected under policies of blanket insurance. 10.4 Waiver of Subrogation Provided neither party's insurance coverage will be affected by a waiver of subrogation,neither BLD nor the City shall assert against the other,and BLD and the City hereby waive with respect to each other,any claim and rights of recovery for any losses, damages, liability or expenses(including attorneys' fees)incurred or sustained by either of them on account of injury to persons or damage to property arising out of services performed pursuant to this Agreement. 11. Out of Pocket Costs BLD shall bear its own black and white photocopying, fax, telephone, postage and overnight delivery charges. The City shall reimburse BLD for other reasonable out-of-pocket costs BLD incurs and pays to third parties in performing,its obligations if,but only if, such have been approved in advance by the City. The City shall reimburse BLD for such previously approved costs within thirty(30)days of receipt of invoices therefor which include backup documentation. 12. Modification No modification or extension of this Agreement shall be valid unless the same is in writing and executed by the parties to this Agreement. 13. Attornevs' Fees In the event that either party files a lawsuit to enforce the provisions of this Agreement,then the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs as fixed by the court. 14. Notices All notices required or permitted hereunder shall be in writing and shall be deemed to be delivered three(3) days after having been deposited in the United States mail,postage prepaid,certified mail,return receipt requested, addressed to the parties at the respective addresses 6 set forth below or at such other addresses as may have been theretofore specified by written notice delivered in accordance herewith: If to the City: City of Redlands 35 Cajon Street Redlands, California 92373 Attention: John Davidson City Manager If to BLD: Big League Dreams USA, LLC 10550 Galena Street Mira Loma, California 91752 Attention: Scott Parks LeTellier Chief Executive Officer 15. Compliance with Laws BLD shall complywith all applicable laws,ordinances and codes of the federal, state and local governments. 16. Governing Law and Venue This Agreement shall be construed under and in accordance with the laws of the State of California and all obligations of the parties created I., hereunder are performable in the State of California. Any action to enforce this Agreement shall be brought in the Superior Court of California, County of San Bernardino. 17. Severability If anyone or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid,illegal or unenforceable provision had never been contained herein. 18. Integration This Agreement supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. 19. Date of Agreement The date of this Agreement shall be the date it is signed by City. 7 IN WITNESS WHEREOF, the parties have executed this Agreement effective the date and year first set forth above. CITY OF REDLANDS Dated: December 4, 2001 Mayor, City of Redlands ATTEST: Lor ie PoyK4g4y City Clerk BIG LEAGUE DREAMS USA, LLC F Scott Parks LeTelher,ChiefExecutive Officer 8 EXHIBIT A Phase I - Previous Plans and Consulting Services. A. Previous Plans BLD shall provide at no expense to the City copies(without architect or engineer signatures or stamps)of complete construction documents,digitized working draxvings and specifications for all architectural elements (except the stadium replica features) from an existing Big League Dreams Sports Park (the "Previous Plans") for use and reference in the creation of construction documents, drawings and specifications for the construction of the Sports Complex. BLD shall endeavor to obtain the Previous Plans with the appropriate architect and engineer stamps and signatures to enable their re-use as plans for the Sports Complex. Any re-use fees or charges incurred in doing so shall be the responsibility of the City as part of the cost of the Sports Complex project. The Previous Plans shall cover the following Sports Complex project elements at a minimum: I. Stadium Club Concession Facility 2. Entry Gate Building 3. Offices 4. Batting Cages 5. Pavilion 6. Dugouts 7. Shade Structures 8. Fixed or Stadium Seating 9. Maintenance Buildings 10. Entry Fences and Gate 11. Enclosures 12. Signage 13. Site Layout and Civil Drawings excluding Parking Areas 14 Landscape and Irrigation Plans for Fields 15. Structural Calculations and California Energy Compliance Calculations BLD shall provide all the Previous Plans in or by one of the following formats: 1. 3.5-inch FID, IBM compatible diskette I W -f in95 ormatted, 100 MB Zip diskette 3. FTP transfer to the City's internet server 4. Electronic mail transfer to a specific e-mail address 5. PC form CD-ROM disk. B. Consulting Services BLD shall review, assist and advise the City on the following: 1. Site development concerns: Environmental, traffic, grading and drainage. 2. Preliminary design: Architectural design and site layout alternatives. 3. Financial forecasting: Five-year and forty-year income/expense estimates. 4. Public relations: Committees, community groups, and media. 5. Financing options. 6. Project approval presentations at City hearings. 7. Planning and design team selections. 8. Regular on-site planning meetings and regular telephone updates. 9. Construction management team selections. 10. Building permitting. 11. Participate in RFQ process,review bids and provide input prior to selection ofcontractor and award of bid. 12. Master planning decisions on how the AYSO Fields would relate to and impact the Sports Complex. Phase 2 - Consulting Services 1. Provide bi-weekly, on-site troubleshooting and inspections. 2. Attend bi-weekly, on-site meetings and famish regular telephone progress updates. 3. Public relations and pre-opening program marketing, ZZ 4. Assist the City in obtaining furnishings, fixtures and equipment for the Sports Complex at competitive prices. 5. Assist the City in controlling design changes to approved plans that increase construction costs. Changes to plans shall be approved by both City and BLD with the design team. 6. Assist the City in revising the size and scope of the Sports Complex project and re-bidding if construction bids exceed the project budget. 7. Final inspection and punch list.