HomeMy WebLinkAboutBig League Dreams Consulting, LLC. - ENA 4/14/2011, Regional Sports Complex and Granite Park to improve and operate baseball/softball copmlexesEXCLUSIVE NEGOTIATION AGREEMENT
This EXCLUSIVE NEGOTIATION AGREEMENT ("ENA") is dated, for reference
purposes, as of the Effective Date (as defined in Section 16.6), and is entered between
the CITY OF FRESNO, a municipal corporation (°City"), and BIG LEAGUE DREAMS
CONSULTING, LLC., a California limited liability company ('"BLD'), on the terms, and
subject to the conditions, set forth below. The City and BLD are sometimes referred
herein collectively as the "Partes," and either individually as a °Party.'
RECITALS
A. The City is the owner of certain real property commonly known as the
Regional Sports Complex and the Granite Park Ball Fields, referred to collectively as
the 'Sites" and more specifically described in the attached Exhibit A. The City desires
to encourage and effectuate the improvement and operation of those facilities.
B. BLD proposes to improve and operate the Sites as baseball/softball
complexes open to the public (the'PrpjeCr).
C. The Parties intend to negotiate mutually acceptable terms and conditions
in a Lease Agreement and such other ancillary agreements as may be necessary
(collectively the "Site Agreements'), that will define the Parties' (and affiliates of BLD's)
rights, obligations and participation in the improvement and operation of the Sites.
EXCLUSIVE NEGOTIATION AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and further
consideration as is hereby acknowledged, and subject to the terms and conditions and
provisions hereof, the Parties agree as follows:
1. Exclusive Good Faith Negoi ations. The Parties, during the Negotiation P96M
defined in Section 3 below, and only for so long as BLD timely meets its obligations
under this ENA, shall negotiate exclusively and in good faith regarding the proposed
improvement and operation of the Site and the terms M the Site Agreements. Good
faith negotiations shall include, without limitation, attending scheduled meetings,
directing staff and consultants to cooperate with the other Party to the extent reasonably
practicable and necessary to negotiations, providing information reasonably available m
the Party and necessary to negotiations, and promptly reviewing and returning any
comments on corespondence, reports, agreements or other documents received from
the other Party.
2. Project ConceptiScope. The negotiations under this ENA will be based on a
project concept including components described in Recital'B" above.
3. Negotiation Period. The Parties will negotiate for 45 days from the dale that the
City executes this ENA (the 'Negotiation Period"), unless negotiations are terminated
sooner as provided herein. When the Negotiation Period expires, this ENA shall
automatically terminate unless, before expiration of the Negotiation Period, BLD
prepares and delivers a status report to the Council of the Cry (the 'Council')
demonstrating to the Cry's satisfaction that BLD is then in material compliance with this
ENA, and that BLD has made and is then making good faith efforts to timely complete
all its obligations hereunder, and explaining why BLD has been unable to complete its
obligations hereunder, despite such good faith efforts; and the City Council approves
the extension of this ENA and BLD and the City execute an amendment to this ENA to
implement extending the Negotiation Period.
If, on expiration of the Negotiation Period, Including any extensions, the Council
has not made the requisite findings and approved one or more of the Site Agreements
that the Parties timely execute, Nen this ENA shall automatically terminate unless the
Council has approved and BLD and the City have entered, a written extension of the
term of this ENA. On termination of this ENA, the City thereafter may deal with the
Sites and negotiate with others conceming the Sites as the City in Its sole and absolute
discretion may determine.
Notwithstanding the foregoing, any Party may terminate this ENA for cause in the
event the other Party is in default of this ENA for failure to negotiate in good faith. Any
substantive breach of this ENA shall constitute a failure to negotiate in good faith. No
Party shall terminate this ENA unless the Party seeking to terminate has first provided
wriften notice of its intent to terminate the ENA to the other Party, specifying the cause.
and the non-performing parly(ies) fails) to cure the default or other cause within ten
(10) days after receipt of such notice. In the avant this ENA is ternlnaled, In
accordance with this paragraph, no Party shall have any further rights, obligations, or
liability to the other Party as the result of this ENA.
4. Meetings. Within five days after the Effective Date, the Parties shall jointly prepare
a meeting schedule that anticipates accomplishing the timely performance of those
activities and tasks contemplated hereunder. BLD and City staff, as needed, shall meet
or hold a conference call on average every week to discuss the status of the activities
and tasks, the accomplishment of such activities and tasks and other matters relatetl to
the negotiations and the Project.
5, Proposed Terms and Conditions for Site Agreements. During the Negotiation
Period including any extensions, the Parties shall negotiate the proposed thums for the
Site Agreements. The Site Agreements will detail the Partes' (and affiliates of BLD's)
respective rights and obligations for improving and operating the Project on the Sites.
6. BLD's Principals and Legal Status. BLD shall disclose such information to the
City regarding its principals, legal status and project experience as the City may
reasonably request. At a minimum, BLD shall disclose the following: (a) its principals,
shareholders, members and/or partners, (b) its directors, officers, and key employees,
(c) its parent company, subsidiaries and affiliates, if any, and (d) all other pedkient
information concerning BLD and its legal structure.
Without limiting the generality of the preceding paragraph, BLD represents the following
concerning BLD as of the Effective Date:
6.1 BLD is a California limited liability company.
6.2 The principal office of BLD is:
16639 Fairfield Ranch Road
Chino Hills, CA 91709
6.3 The principal members of BLD are:
Richard Odekirk, Member and Manager
Jeff Odekirk, Member, Manager and COO
Scott LeTellier, Manager and CEO
Big. League Dream USA, LLC, Member and Parent Company
BLD will give the City at least five daysprior nctice of any change in the above
Information during the term of this ENA. Any change in the principals, members or
managers of BLD during the Negotiating Period of his ENA will be subject to the written
approval of the City.
7. Financial and Other Information. BLD shall promptly provide the City with
financial and other information, data, and commitments that the City may reasonably
request to ascertain BLD's or as partners' performance capabilities to expeditiously
complete the Project on the Sites. In any event, no later than 15 days before end of the
Negotiation Period. including any extension thereof, BLD shall submit to the City, in
reasonable detail, BLD's proposed plan to finance the consbuction costs for agreed
improvements to be made to the Project.
BLD will specifically identify any such information that is proprietary. To the
extent permitted by law, the City will use best effods to maintain the confidentiality of
such BLD -identified information consistent with controlling law and order(s) of wurl(s) of
wmpetent jurisdiction, but will have no liability if, despite its best efforts, any BLD -
identified information is disclosed. Notwithstanding the preceding sentence, the City
may disclose (with reasonable conditions designed to preserve wMtlenbality as BLD
shall furnish to the City) such BLD -identified infomiation to City allomeys and certified
public accountants, consutti nis whose principals, employees, subcontractors or
affiliates are not engaged In the operation of recreational sports parks, employees and
officers in connection with the Project, and the City shall disclose such information as
any court or other authoritative body may direct or order.
8. Assignment Prohibited. BLD may not assign or otherwise transfer any of its
rights or obligations under this ENA without the express written consent of the City. The
City may give or deny consent in its sole and absolute discretion.
9. Additional BLD Responsibilities. Without limiting any other provision of this
ENA, BLD shall, during the Negotiation Period, including any extension thereof, do Me
following at Its sole cost and expense in furtherance of the negotiation process:
9.1. Meetings. BLD shall meet wkh City representatives to review and understand
the terms of the Site Agreements governing the improvement and operation of
the Sites.
9.2. Reports. Normally but not more frequently than monthly, but at any time
requested by the City Council, BLD shall make orel and summary form written
progress reports advising the City anti/or its staff an all progress being made
on tasks and other activilies undertaken by BLD pursuant to this ENA.
9.3. Rights of Entry. Before entering upon any property within the Site, whether
for site assessment or other due diligence, BLD shall that obtain a right of
entry from the City and any tenant or occupant BLD may ask the City to use
best efforts to help BLD obtain a right of entry upon private property. The right
of entry shall be in form and content reasonably acceptable to the City
(including any required insurance/indemnity provisions) and any private
property owner.
10. City Responsibilities. During the Negotiation Peri including any extension
thereof, in furtherance of the negotiation process the City will cooperate and assist BLD,
as neededin fumlling BLD's obligations hereunder.
11. Compliance with Laws/CEQA. If the negotiations result in one or more proposed
Sita Agreements, City Council approval thereof may occur only after compliance, as
may be required, with all applicable laws and ordinances including, without limitation,
CEQA, An objective during the Negotiatlon Penod, is to establish a Project scope and
description sufficient to include in any NEPA and CECA review determined to be
requiretl. Any Site Agreement shall become effective only if and after the Site
Agreement has been considered and approved by the City Council at a public hearing
called for such purpose.
Responsibility for the cost of CEQA compliance for me Project, as determined
necessary, shall be negotiated by the Parties In connection with the negotiation of the
Site Agreements. BLD shall cooperate with the City in preparation of the environmental
documents by, among other things, timely supplying necessary technical data and other
related information and/or plans concerning the Project in accordance with the terms of
the Site Agreements.
12. Entire Agreement; Attorneys' Fees; Time is of the Essence; Counterparts.
This ENA is the entire agreement as understand by the Parties with respect to the
matters set forth herein. This ENA may be amended only in a writing signed by all
Parties, and approved by the City Council. If a Party brings an action or files a
proceeding in connection with the enforcement of es respective rights or as a
consequence of any breach by the other Party, then the prevailing Party(res) in such
action or proceeding shall be entitled to have Rs reasonable atimneys' fees and costs
and other out-of-pocket expenditures paid by the losing Party. Time Is of the essence in
this ENA. This ENA is the product of negotiation and all Parties are equally responsible
for authorship of this ENA. Section 1654 of the California Civil Code shall not apply to
the interpretation of this ENA. Each individual executing this ENA represents and
warrants they are duly authorized to execute and deliver this ENA on behalf of the Party
named herein and this ENA is binding upon said party in accordance with its terms. This
ENA may be executed in counterparts.
13. Nondiscrimination. BLD covenants and agrees that there shall be no
discrimination against or segregation of any person or group of persons on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code
(race, color, religion, sex, sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability or any other basis prohibited by California
Civil Code § 51), as Mose bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, nor shall BLD or any pereon claiming under or through BLD
establish or permit any such practice or practices of discrimination or segregation in the
selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees of the Sites.
14. Notices. All notices required or permitted hereunder shall be delivered in person or
by facsimile, by overnight courier, or by registered or certged mail, postage prepaid,
return receipt requested, to such Party at its address shown below, or to any other place
designated in writing by such Party:
City: City Manager
City of Fresno
2600 Fresno St., Room 3070
Fresno, CA 93721-3605
FAX No.:
BLD: Big League Dreams Consulting, LLC
Attn: Scott LeTellier
16339 Fairfield Ranch Read
Chino Hills, CA 91709
FAX No.: (310) 544-2443
Notice shall be deemed received on delivery, If delivered personally or by
facsimile, one day after delivery to the courier R delivered by courier; or three days after
deposit into Ne United States mail 9 delivered by registered or certified mail.
15. Agreement Limitations. The City is not. by entering this ENA, committing itself to
or agreeing to undertake any other ad or activities requiring the subsequent
independent exercise of discretion by the City or any agency or department thereof.
This ENA is merely an agreement to enter exclusive negotiations with respect to the
Sites according to the lentis hereof, with all final discretion and approval remaining with
the City Council as to any Site Agreements and all proceedings and decisions in
connection therewith.
16. Miscellaneous provisions.
16.1. Governing Law and Venue. California law governs this ENA. The provisions
of this ENA will be construed, and the rights and duties (procedural and
substantive) of the Parties hereunder will bedetermined, according to
California laws. Venue for fling any action to enforce or interpret this ENA will
be Fresno, California.
16.2. Headings. The section headings in this ENA are for convenience only, they
do not explain, modify or add to the meaning of this ENA.
16.3. Severability. The provisions of this ENA are severable. The invalidity or
unenforceability of any provision in this ENA will not affect the other
provisions.
16.4. Interpretation. This ENA is the result of the combined efforts of the Parties.
If any provision is found ambiguous, the ambiguity will not be resolved by
construing this ENA in favor of or against either Party, but by construing the
terms according to their generally accepted meaning.
16.5- Precedence of Documents. If the body of this ENA and any Exhibit or
attachment conflict, the terms in the body of this ENA will control. Any term or
condition in any Exhibit or attachment that purports to modify the allocation of
risk between the Parties Is void.
166. Successors and Assign. Subject to the limitation on assignment in
Section 8, this ENA is binding on and will inure to the benefit of the Parties and
their respective successors and assigns.
167 Duplicate Originals. The Parties may sign this ENA in duplicate originals,
each of which when signed and delivered will be deemed an original, and all of
which together will constitute one instrument.
16.8. Effective Date. The EffectNe Date of this ENA shall be the date that the City
executes this ENA, following City Council approval.
16R Independent Capacity. The City shall not become or be deemed a partner or
joint venturer with BLD or associate in any such relations with BLD by reason
of the provisions of this ENA. BLD shell not for any purpose be considered an
agent, officer or employee of the City.
18.10. Conflict of Interest No officer or employee of the City shall hold any
interest in this ENA (Calgomia Government Code Section 1090.)
Each Party acknowledges that this ENA has been executed by its duty authorized
representative(s) on the dates shown below
CITY:
CITY OF FRESNO
A California Municipal Corporation
1 4e
Mark Scott, City Manager
Dated: •{_ZS--// ,2011
BLD:
BIg League Dreams Consulting. LLC.
a California Intact liability company
Scott Parks AALeTellianaBer and CEO
Dated: / t0/7l I a '2011
ATTEST:
REBECCA KLISCH
City Clark
By: ✓J I ux:
Deputy
Attachments:
Exhibit A: Description of Sites
APPROVED AS TO FORM'.
JAMES C. SANCHEZ
Clry Attorney
By:
Deputy
FRES
�^ll REPORT TO THE CITY COUNCIL AGENDA ITEM NO. 9; OOaIp
COUNCIL MEETING 4A 4!2011
wmsnvEoev
�PAATMEM d eECTda
April 14. 2811 crrc unnu�n��J-c'-sal
FROM: MARK SCOTT, CRY Manager
BRUCE A. RUDD, Assistant City Manager
SUBJECT: APPROVE AN EXCLUSIVE NEGOTIATION AGREEMENT WITH BIG LEAGUE DREAMS
CONSULTING, LLC, PERTAINING TO A LEASE AGREEMENT FOR THE GRANITE PARK
AND REGIONAL SPORTS COMPLEX FACILITIES :. pliptlobiamd
lip
lends approval of the Exclusire Negotiation Agreement (ENA) between the City of Fresno and Big
me, LLC(BLD).
SUMMARY
The City of Fresno holds title to the recreetonal facilities known as Ganite Park, at Asman and the 168
Freeway in District 4, and the Regional Sports Complex, on Jensen Avenue in Distinct 3. BLD has
expressed interest In leasing and operating sports programs at both facilities. The City does not need to
competitively bid lease opportunities and, therefore, staff is recommending that the Cound approve an
ENA between the City and BLD, which will allow Na parties 3045 days in which to negotiate and
attempt to reach agreement an terms governing the lease of both fadlitles.
BACKGROUND
Since late 2009, the City has been In discussions with BLD about rehabilitating the Granite Park balifields and
reopening them for play under BLOB management In Cordial 2010, City doff brought a proposed strategy
forward to Council that called for BLD to lease the facility. At Met time, the City Council determined that more
mn4arsatlon was necessary. While it was implied that others may have been Intereated, the City has not been
provided with any credible proposals. Not seeing any other interested Party with the capacity and experience
of managing such a facility, the City Manager's Office requested that BLD submit a revised proposal for
managing the Granite Parklachly The proposal focusd! Induced an innovative approach of managing both
the Granite Park fields and The Regional Sports Complex fiek r. A preliminary proforma demonstrated that the
Granite Park fields would generate sufficient revenue to pay for the BLD management, operating, and licensing
fees, but will probably not generate profit for tre City. Hassel the proforma did demonstrate Nat the
Regional Sports Complex may generate profs to the City through a profit-shmirg arrangement with BLD. In
addition, BLD has proposed funding various capital improvements at both facilities.
The City Moral Office is requesting that the Gty Council approve an ENA with BLD to further explore the
possibility of a lease between the parties. The ENA sets parameters under which both parties agree to
negotiate, and use of an ENA eliminates Me need to spend time and resources putting out a Request For
Proposals, The ENA states that the City and BLD will negotiate Leese terms for 30 to 45 days. At the end of
that tlme Mmod, a there is no agreement, both parties may walk away wth no penalties.
REPORT TO THE CITY COUNCIL
Approval of an Exclusive Negotiation Agreement
with Big League Dreams Consulting, LLC
April 14, 2011
agers Office intends to include a small Coundl committee, comprised of the Council President
auncil Members Baines and Westedund, in whose Districts the two facilities reckle, with Lease
These three Council Members have been boarded of this, and have met with the City Manager's
1 League Dreams to walk through a preliminary proposal to determine fine probability of success
negotiations result in a mutually acceptable set of term a, staff will return to Council with the Lease far
In June.
FISCAL IMPACT
Approval of the ENA has no fiscal impact to the City. If the City add BLD reach an agreement within the 4
day timeframe, any terms of the Lease and the related fiscal impacts will be clearly stated In me staff report to
Council for approval of a Lease. Thereisnofis llmpadrelatedtothis EMNthe Cityand BLDareuneb to
reach agreement of Lease terms.
AHachmenL 6Gusive Negotiation Agreement between me City of Fresno and Big League Dreams, LLC