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HomeMy WebLinkAboutR-2001-073 Big League Dreams USA Interim Consulting Services AgreementA Resolution RESOLUTION R 2001- 73 authorizing the City manager to enter into an agreement with Big League Dreams USA, LLC for Interim Consulting Services related to the establishment of a Sports Complex at Kiwanis Park. WHEREAS, many leaders of the City of Yakima (the "City") and the greater Yakima community believe that development of a publicly owned Sports Complex including without limitation baseball, softball, indoor hockey and indoor soccer facilities such as those designed according to plans, and specifications available from Big League Dreams USA, LLC, of Mira Loma, California, ("Big League Dreams") would be a community asset. A Sports Complex at Kiwanis Park would provide the City and the greater Yakima community with a unique tool to re-establish Yakima's historic image as the sports capital of the Pacific Northwest and a significant vehicle for enhancing economic development and tourism; and WHEREAS, Big League Dreams is experienced in designing, managing, and operating sports complexes (including baseball, softball, volley ball, inline hockey and soccer facilities) in Cathedral City and Jurupa, Riverside County, California; and WHEREAS, three major local service organizations, namely Kiwanis, Rotary, and Lions, have already invested substantial time, energy, and money to acquire necessary property adjacent to Kiwanis Park, and to introduce the possibility of a Sports Complex such as those designed operated by Big League Dreams to leaders of the City of Yakima and the greater Yakima community; and WHEREAS, Big League Dreams is willing, during the six month period from May 1, 2001 through October 31, 2001, to provide the City with consulting services regarding the possibility of a publicly -owned Sports Complex at Kiwanis Park, and to refrain from communication with any city county, or any other municipal corporations or subdivisions of an state or with an natural . erson or entity regarding any possible Big League Dreams sports park within 300 miles of Yakima during the same six month period; and WHEREAS, it is in the best interests of the City and the greater Yakima community that the City retain Big League Dreams to provide, the interim consulting respect to the proposed and cnn.strnction cost forecasting consulting services with respect p� p� Sports Complex according to the attached Interim Consulting Services Agreement; now therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIIYIA: The City Manager is authorized and directed to execute the attached Interim with League r. Dreams LLC. USA, Consulting Services Agreement Big t��agi.�c ADOPTED BY THE CITY COUNCIL this ATTEST: day of May, 2001. Mary Place, Mayor g6uLos„, ,J_ ,V Karen S. Roberts, City Clerk C:\word\sports complex\res -auth interim services k.doc Last printed 04/30/01 5:13 PM 2 INTERIM CONSULTING SERVICES AGREEMENT THIS INTERIM CONSULTING SERVICES AGREEMENT (this "Agreement") is entered effective May 1, 2001, by and between the CITY OF YAKIMA, a Washington municipal corporation (the "City"), and BIG LEAGUE DREAMS USA, LLC, a California limited liability company ("BLD"). RECITALS A. The City proposes to construct a high-quality, multi-purpose recreational sports complex including baseball/softball fields; a covered structure for indoor soccer, inline hockey and basketball; and other related amenities including a sports -theme restaurant (the "Sports Complex" or "Sports Park") for the benefit of its citizens. B. BLD has experience and expertise in (1) the planning, design and construction and (2) the operation of facilities such as the proposed Sports Complex. C. The City is pursuing various alternatives to finance construction of the proposed Sports Complex, including, without limitation, grants from the State of Washington and tax increases which require voter approval. While the City pursues such financing alternatives, the City wishes to retain BLD, by this Agreement, on an interim, fixed -term and fixed -fee basis to help the City develop and present accurate information about the proposed Sports Complex and its cost to its citizens, to ensure that BLD refrains from any and all negotiations with other parties regarding other possible locations for a BLD -style sports park within 300 miles of Yakima, and to ensure the City's right to use any plans or specifications prepared by BLD under this Agreement. AGREEMENT 1. Contract for Services. The City hereby retains BLD to render, and BLD agrees to provide, the interim consulting and construction cost forecasting consulting services with respect to the proposed Sports Complex as set forth below (the "Consulting Services"): (a) Develop and provide the City with accurate information regarding the nature, size, cost, scope, traffic, economic impact and community benefits of the proposed Sports Complex, including particularly, information pertaining to other sports parks planned, developed and operated by BLD. (b) Refine cost estimates for construction of the proposed Sports Complex. 2. Services of BLD. BLD shall provide such Consulting Services through its members, employees and/or officers as may be necessary. 3. Term and Termination. This Agreement shall commence on the effective date of this Agreement and shall continue, unless sooner terminated as provided in this section, for a period of six (6) months through October 31, 2001 (the "Term"). Either party may terminate this Agreement effective upon thirty (30) days' written notice in the event the other party, after having received written notice specifying the nature of a material breach of any term or condition of this Agreement and after the expiration of a fifteen (15) day period in which such breach may be cured (or, in the event the breach may not be cured within fifteen (15) days, the cure is begun within fifteen (15) days and is thereafter diligently prosecuted to completion), fails to remedy the breach. Either party may terminate this Agreement immediately upon written notice in the event the other party 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. 4. Consulting Fees. For the Consulting Services, the City shall pay BLD a fixed fee of $100,000, payable $25,000 per month on the first day of each of the first four (4) months of the Term (the "Consulting Fees"). The first payment shall be made on the effective date of this Agreement. The remaining payments shall be made on June 1, 2001; July 1, 2001; and August 1, 2001, respectively. All payments shall be made payable and sent to: Big League Dreams USA, LLC 10550 Galena Street Mira Loma, California 91752 Attention: Managing Director 2 5. Applicability to Related Agreements. During the first sixty (60) days of the Term, the parties shall negotiate in good faith the terms and provisions of: (a) A long-term lease agreement by which an affiliate of BLD shall lease the Sports Complex from the City and assume obligations to operate and maintain it at no expense, liability or obligation to the City in return for the payment by BLD of a percentage of gross revenues received by the BLD affiliate during its operation of the Sports Complex (the "Lease"). (b) A license agreement by which BLD shall license to the City the right to use BLD's proprietary interest in the look, design, style, shape, color scheme and architecture of Big League Dreams sports parks, including, without limitation, the outfield fence and replica features, concession facility design and layout; the name "Big League Dreams"; and the Big League Dreams Sports Park logo and related marks used in the operation of the Sports Complex (the "BLD Total Image and Names and Marks") and the commitment by BLD not to license the BLD Total Image and Names and Marks to any other community or party within a specified territory in return for the payment of a license fee or such other consideration as may be negotiated (the "License Agreement"). In the event BLD and the City enter the License Agreement, the City will be licensed to exercise certain rights with respect to the BLD Total Image and 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. (c) A planning, design, and construction consulting agreement by which BLD shall furnish to the City planning and design (phase 1) and construction (phase 2) consulting services in connection with the development and construction of the Sports Complex and its improvements in return for a consulting fee (the "PDC Consulting Agreement"). The Lease, the License Agreement, and the PDC Consulting Agreement may hereinafter be referred to collectively as the "Related Agreements." In the event the 3 parties are able to finalize the Related Agreements (as necessary, subject to the condition subsequent of financing), the Consulting Fees paid under this Agreement (as well as any other fees paid to BLD by Sun Yakima, LLC) shall apply against and reduce the obligation of the City with respect to the consulting fees to be paid by the City pursuant to the PDC Consulting Agreement. The inability of the parties to finalize the Related Agreements shall not result in a termination of this Agreement or of the obligations of the City to pay the Consulting Fees. 6. Restrictions on Other Negotiations. During the Term, BLD shall not (a) enter any agreement relating to a future Big League Dreams sports park, or (b) negotiate terms or conditions of any such agreement with any city, county, or any other municipal corporations or subdivisions of any state, or with any natural person, or entity regarding a future Big League Dreams sports park within 300 miles of Yakima. BLD and its affiliates may contract and otherwise continue to conduct other business activities with other municipalities not specifically excluded in the foregoing sentence. During the Term, BLD shall not communicate regarding any potential sports park within 300 miles of Yakima beyond informing persons who may request discussions of the restrictions established in this Agreement. BLD shall similarly advise any persons with whom it has already begun any communication, discussions, or negotiations regarding possible BLD sports parks within 300 miles of Yakima that no further discussion or negotiation shall occur before the Tem of this Agreement expires. 7. Use of Plans and Specifications. Subject to Section 5(b), this Agreement creates a non-exclusive and perpetual right for the City to copy, use, modify or reuse, 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 drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared by 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, 4 project specifications and other materials or documents prepared by or for the City in connection with the Sports Complex. 8. Right to Assignment. Without the written consent of the other party, each party shall have the right to assign its rights and obligations under this Agreement only to an affiliate of such party. 9. 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. 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. 10. Representations and Warranties. BLD represents and warrants to the City as follows: (a) It is, and will continue to be throughout the Term, 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 not pending 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 5 (d) The consummation and completion of the services to be performed under this Agreement will 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 (i) the Articles of Organization of BLD, or (ii) any material agreement, instrument or arrangement to which BLD is a party or bound. 11. Out -of -Pocket Costs. BLD shall bear its own black and white photocopying, fax, telephone, postage, overnight delivery charges, and travel expenses including transportation, meals, and related incidental charges. The City shall reimburse BLD for other reasonable out-of-pocket costs it incurs and pays to third parties in performing its obligations if, but only if, such have been approved in advance in writing 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. 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 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: If to BLD: City of Yakima 129 N. 2nd Street Yakima, Washington 98901 Attention: Dick Zais City Manager Big League Dreams USA, LLC 10550 Galena Street Mira Loma, California 91752 Attention: Scott Parks LeTellier Chief Executive Officer 13. Miscellaneous. No modification of this Agreement shall be valid unless in writing and executed by both parties. In the event of a dispute regarding the 6 interpretation, enforcement or breach of this Agreement, the prevailing party shall be' entitled to reasonable attorneys' fees and all other expenses (including fees and costs related to discovery) reasonably incurred in connection with such dispute. If any one! 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 hereof. This Agreement shall be construed under and in accordance with the laws of the State of Washington. This Agreement supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement effective,the date and year set forth above. BIG LE UE. ' ' EAMS USA, LLC City Contract No. 2001-48 Resolution'No_ R-2001-73 ATTEST: By: Scott Parks LeTellier Its Chief.Executive Officer THE CITY OF YAKIMA By: Richard A. Zais, Jr. City Manager 7 f ng City Clerk BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. -"A" 13 For Meeting Of May 1, 2001 ITEM TITLE: Consideration of Legislation relating to Sports Complex Proposal SUBMITTED BY: Dick Zais, City Manager CONTACT PERSON/TELEPHONE: Dick Zais / 575-6040 SUMMARY EXPLANATION: Pursuant to Council direction on April 24, 2001 re: the Sports Complex at Kiwanis Park, the following legislation is submitted for Council consideration: A. A Resolution calling for a September Primary Ballot proposition to increase private utility taxes by 1c)/0 to help finance a Sports Complex at Kiwanis Park B. A Resolution authorizing an Interim Consulting Services Agreement with Big League Dreams for the planning and design of a Sports Complex. The fee for this agreement is $100,000 and will be shared equally by the City and the Yakima Rotary Trust, et.a. The City staff and Legal Department have jointly prepared this agreement with Big League Dreams. The resolution calling for a special election requests the County Auditor to "deem an emergency to exist". This language is included to satisfy the statute that governs the Auditor's action upon the City's request for a special election (as opposed to a general election): "The county auditor, ... upon request in the form of a resolution of the governing body of a city ... , may, if the county auditor deems an emergency to exist, call a special election in such city . . and for the purpose of such special election he or she may combine, unite, or divide precincts...." RCW 29.13.020(2). The use of "emergency" in this context should not be compared to or confused with the very unusual occasions when the City Council may declare an emergency in order to make an ordinance effective immediately. Resolution two Ordinance Other (Specify) Interim Consulting Services Agreement Contract Mail to (name and address): Phone: Funding Source Parks Capital Fu and Yakima Rotary Trust, et.al. APPROVED FOR SUBMITTAL:� �� City Manager STAFF RECOMMENDATION: Adopt Resolutions to call for a special election and to enter into an agreement with Big League Dreams BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: (A.) Resolution adopted. RESOLUTION NO. R-2001-72 (B.) Resolution adopted. RESOLUTION NO. R-2001-73