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HomeMy WebLinkAboutA8439 - RESORT PARKING SERVICE, IncCITY OF PALM SPRINGS VENUE LICENSE AND FACILITY USE AGREEMENT (DOWNTOWN PARMG GARAGE) RESORT PARMG SERVICE, INC. PS Art Museum PSIFF Opening This VENUE LICENSE, EVENT AND FACILITY USE AGREEMENT (the "Agreement") governed by the laws of the State of California is made and entered into this 23 day of December, 2019, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, hereinafter called ("CTM and Resort Parking Services, Inc., a California corporation, hereinafter called ("USER"), concemingtbe use of The City -owned Downtown Parking Garage located on Museum Drive between Museum Way and Belardo Road and, hereinafter called ("FACILITYISPCE'), for valet parking services for the PALM SPRINGS INTERNATIONAL FILM FESTIVAL OPENING, hereinafter, the ("EVENT'l held at the Palm Springs Art Museum. The CITY and USER do hereby mutually agree as follows: 1. TERM OF USE. This Agreement shall be in frill force and effect for &period of4.5 hours, commencing at 7:15 PM and continuing until 11:30 PM, on Friday, January 3, 2020 for the EVENT. 2. FACILITY USE. 2.1 DOWNTOWN PARKING GARAGE. CITY grants USER the use of a portion of the Downtown Parking Garage, as identified in Exhibit "A" and incorporated herein by reference. 2.2 FEES AND CHARGES FOR FACILITY USE. There is no fee charged to the USER for the use of the Facility for this EVENT. USER has the duty to secure, at USER's sole cost and expme, all permits and licenses required to utilize the FACILITY/SITE as RESORT PARKING SERVICES, INC for the EVENT. USER shall secure said permits in advance of the EVENT, and in accordance with all State and local laws, ordinances, and standards. 3. SECURITY. The USER is responsible for providing security within the FACILITY during the time period described in Section 1 of this agreement The USER shall be responsible for monitoring all area where its patrons park in the FACILITY/SITE during the period its patrons are parked. 4. INSURANCE. Obtain and present to the city attorney, no later than two (2) weeks before the EVENT, all certificates of insurance, endorsements related thereto, and liability release forms for USER for each and all of USER's volunteers, and USER's contractors and vendors participating in EVENT. All commercial general liability insurance shall be primary and non-contributory over any insurance or self-insurance the CITY may have, and shall name "The City of Palm Springs, its officials, employees, and agents" as an additional insured. All policies shall contain an undertaking by insurers to notify any Additional Insured in writing, not leas than thirty (30) days before any material change, as to any reduction in coverage, cancellation, or other termination thereof. Workers' Compensation coverage as required by California law and CITY shall contain the insurer's waiver of subrogation in favor of CITY, its officials, employees and agents. USER's insurance coverage shall conform to the following, including the stated minimum limits of liability and coverage. VENUE LICENSE, EVENT AND FACILITY USE AGREEMENT ArkM9 Remit Seviam Eon 1 PM Opp Page I of 9 a. Commercial general liability insurance coverage shall be on an "occurrence basis," and shall include personal injury, bodily injury, death, broad form property damage, operations bazard, owner's protective coverage, contractual liability and products and completed operations liability, in limits and with coverage not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) general aggregate on a per location basis, all with costs of defense in addition to limits of liability b. Umbrella liability coverage in limits and with coverage not less than Two Million Dollars ($2,000,000) per occurrence, and Two Million Dollars ($2,000,000) general aggregate 4.1 USER, on its own behalf, and on behalf of any insurer providing insurance with respect to any of USER's activiities arising from or related to the EVENT, waives any claim against C17Y with roped to any damage to any and all items of USER's property, including without timitationproperty of USER's volunteers, vendors and/or contractors, which is, or customarily is, covered by a standard property insurance policy for special causes of loss coverage, except for any claims resulting primarily from CITYs gross negligence, recklessness or willful misconduct.. 4.2 To the extent permitted by law, USER releases CITY, its officials, employees and agents from, and waives all claims for, damage to person or property sustained by USER or any person(s) attending or participating in the EVENT, or in any vehicle, in any area or place used and/or procured by USER, and used by any persons) attending the EVENT, including without limitation the "Event Location", resulting from the EVENT, except for any claims resulting primarily from CITYs gross negligence, recklessness or willful misconduct. This release includes any claim for or damage to USER or any person(s) arising from correlated to any equipment or appurtenance at the Site becoming out of repair or resulting from any accident, or resulting directly or indirectly from any act or neglect of USER, or any of USER'S volunteers, vendors, or contractors, including their respective agents and employees. This release shall apply equally whether any such claim or damage results from the act or neglect of USER, or any of its volunteers, vendors, contractors, or of any other person, and whether such claim or damage be caused or result from anything or circurnstapce above mentioned or referred to, or any other thing or circumstance whether of a like nature or of a wholly different nature. The obligations set forth in this Section 2.1.7 shall survive the termination of this Agreement 4.3 To the fullest extent permitted by law, USER hereby agrees to indemnify, protect, defend, with counsel and experts reasonably acceptable to CITY, and hold harmless the CITY, together with each and all of CITY's officials, employees, and agents (collectively, the "Released Parties"), from and against any and all claims, suits, demands, expenses, liabilities, losses, lawsuits and other proceedings, judgments, causes of action, liens, claim of liens, damages, penalties, litigation, defense or court costa, and expenses, including attorneys' and expert witnesses' fees and costs ("Claims") arising from USER'S presence on or about, oruse of the Site, or from any activity or thing done or permitted by USER, and/or any of USER's volunteers, vendors, contractors, guests, agents, or employees, in or about the Site, or related to USER's use thereof, and from and against any and all Claims arising from any breach or default in the performance of any obligation on USER's part to be performed under the terms ofthis Agreement, or arising from any act or negligence of USER, or any of its guests, agents, contractors or employeea, or arising from or relating to the provision, consumption or availability of alcoholic beverages, if applicable, at the Site, except for any such Claims resulting primarily from CITYs gross negligence, recklessness or wi11Rs1 misconduct. USER further agrees to waive all rights of subrogation against the CITY. The provisions of this Section 2.1.7 do not apply to any damage or loss caused solely by the negligence of the CITY, or any of its officials, employees, or agents. In the event USER fails to perform as to its indemnity obligations, whether independently or in cooperation with any of USERS volunteers, vendors, contractors, insurer;, or from any others as required herein, USER agrees to be fully VENUE LICENSE, EVENT AND FAaLrrY USE AGREEMENT PUMAS Runt swAcm r"e. i PSBW o Page 2 of 9 responsible according to the terms of this Section 2.1.7. The obligations set forth in this Section 2.1.7 shall survive the termination of this Agreement 4.4 CITY hereby agrees to defend, indemnify, release and hold USER, its officers, officials, agents, employees, and volunteers harmless from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect, (including any and all costs and expenses in connection therewith), arising out of CITYs performance of any duty under this Agreement, except to the extent arising from or relating to the negligence, recklessness or willful misconduct of USER. 4.5 Neither party shall be responsible for damages or be in default by reason of delay caused by strikes, lockouts, accidents, or acts of God, governmental agencies, or by reason of another delay beyond the patty's control or for which the party, is without fault. AGREEMENT, BREACH, TERMINATION, REIMBURSEMENT. 5.1 EFFECTIVE DATE. This Agreement shall be effective immediately upon its full execution. Any covenant, term or provision of this Agreement which in order to be effective must survive the termination of this Agreement shall survive any such termination. 5.2 BREACH OF AGREEMENT. Any material deviation by USER for any reason from the requirements hereof, or from any other provision of this Agreement, shall constitute a breach of this Agreement by USER, and may be cause for termination at the election of CITY. C17Y may terminate this Agreement for cause upon any breach, by giving ten (10) days' notice to USER In the event of termination by whatever means, except for termination by USER due to City default, CITY shall have the option to direct USER's actions with respect to access to materials or assigning any rights, such as name, lists, speaker contracts to CITY or its designee. CITY reserves the right to waive any and all breaches of this Agreement, and any such waiver shall not be deemed a waiver of all previous or subsequent breaches. In the event CITY chooses to waive a particular breach of this Agreement, it may condition the same on payment by USER of actual damages occasioned by such breach of Agreement and shall make every effort to resolve the same quickly and amicably. No waiver shall be binding, unless executed in writing by the party making the waiver. USER may waive any and all breaches of this Agreement by CITY. No waiver by USER of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar or not, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure to enforce any provision of this Agreement shall not constitute a waiver of the right to compel the enforcement of the remaining provisions of this Agreement. 5.3 AGREEMENT TERMINATION. In the event USER is unable to fulfill its responsibilities under this Agreement for arty reason whatsoever, including circumstances beyond its control, CITY may terminate this Agreement, in whole or in part, in the same manner as for breach hereof and be entitled to the same rights on termination. 5.4 CITY BREACH. USER may terminate this Agreement for cause upon ten (10) days written notice to CITY. USER's right to termination for cause shall only arise from a CI TYs breach of any obligations, representations and/or warranties in Sections 2.2 and/or 4.4. 5.5 DEFAULT AND BREACH. Failure or delay by any party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement. The party claiming that a default has occurred shall give written notice of said default to the other party specifying the VENUE LICENSE, EVENT AND FACILITY USE AGREEMENT Puking arson savicm me. / Psas? op=b* Page 3 of 9 alleged default, if the party who is claimed to be in default commences to cure, correct, or remedy the alleged default within fifteen (15) calendar days after receipt of said written notice, such party shall not be domed to be in default hereunder. In the event that a default of any party to this Agreement may remain uncured for more than fifteen (15) calendar days following said written notice, a "breach" shall be deemed to have occurred. In the event of a breach, the injured party shall be entitled to seek any appropriate remedy or damages by terminating the Agreement in accordance with Section 3 and initiating legal proceedings as may be appropriate. LICENSE, LOGISTICS. 6.1 FACILITY/SITE. CITY hereby grants to USER, commencing at 7:15 PM and continuing through 11.30 PM on January 3, 2020, the exclusive right privilege, permission and license to enter onto, across, over, in and about and use the FACILITY for the purpose of the EVENT which may include but not be limited to filming and photographing the EVENT and the FACILITY, subj ect only to the right of the CM or any CITY authorized designee to enter onto the FACILITY/SITE for any regulatory or public health and safety purpose arising from or related to this Agreement. USER's staging for VALET PARKING SERVICES at the FACILITY/SITE will commence at 7:15 PM and continuing through 11:30 PM. Upon the EVENT's conclusion, USER's removal of all temporary improvements to the FACII.II'Y/SITE be complete by 11:30 PM on January 3, 2020. USER shall leave the Site in at least as good condition as it finds the FACILPI'Y/SITE upon initial entry at 7:15 PM on January 3 2020. 6.2 HOURS AND USE. During the EVENT, the USER is restricted to the amount of parking spaces Approved in the Temporary Valet Parking Permit. The USER must allow access to employees and the public to the FACILITY/SITE. USER's use of the Site is further described as follows: USER shall provide the necessary equipment and infrastructure, including but not limited to, tents, furniture, food and drink, temporary fencing, bathrooms, generators, waste disposal, staffand vohmteers, and W i-Fi access. USER has the duty to secure, at USER's sole cost and wqx mse, all permits and licenses required to utilize the Site as RESORT PARKING SERVICES, INC. for the EVENT. USER shall secure said permits in advance of the EVENT, and in accordance with all State and local laws, ordinances, and standards. Upon conclusion of the EVENT, USER shall remove all tarts, infrastructure, and equipment and return surface of the lot to its original condition or better, except for normal wear and tear. 6.3 SIGNAGE. USER shall secure CTTY's approval in advance of the EVENT as to any and all temporary sigWe that USER utilizes in relation thereto, as may be required by any local ordinancess;this requirement shall pertain to directional, parking -related, and any other EVENT -related signage. 7. GENERAL 7.1 COMPLETE AGREEMENT. This Agreement reflects all the understandings, terms, and conditions agreed upon by the parties. No other understandings, terms or conditions, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. This Agreement supersedes all previous agreements, if any, between the parties. VENUE LICENSE, EVENT AND FACHITY USE AGREEMENT PwWS Rewt Saviak roc. / P9ff Opeoiog Page 4 of 9 7.2 AMENDMENTS. Any alterations, variations, modifications or waivers of any provision of this Agreement shall be valid only when reduced to writing duly executed and attached to the original of this Agreement. 7.3 NOTICE. For purposes of this Agreement, the addresses of the parties for all notices are as follows: City. CITY OF PALM SPRINGS David H. Ready, City Manager 3200 E. Tahquitz Canyon Way P. O. Box 2743 Palm Springs, CA 92263-2743 (760) 323-8229 User. RESORT PARKING SERVICES, INC. David Dangteis, General Manager 39755 Berkey Dr. Ste. B Palm Desert, CA 92211 (760)328-4041 7.4 CITY REPRESENTATION. The City Manager or his designee shall be designated the "Liaison Representative of City." USER shall work closely with the Liaison Representative of City to keep the CITY currently advised on the status of the EVENT, 7.5 COMPLIANCE WITH LAWS. USER shall comply with all applicable federal, state, and local laws, ordinances and regulations. 7.6 STANDARD OF CARE. CITY relies upon the professional ability of USER as a material inducement to enter into this Agreement USER agrees to use reasonable care and diligence in preparing, presenting, managing, and coordinating the EVENT under this Agreement. USER agrees that the acceptance of its work by CITY shall not operate as a waiver or release of said obligation of USER. The absence, omission, or failure to include in this Agreement, items which are normally considered to be a part of generally accepted professional procedure or which involve professional judgment shall not be used as a basis for submission of inadequate work or incomplete performance. 7.7 DEMANDS FOR ASSURANCE. Each partyto this Agreement undertakes the obligations herein with the understanding that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of due performance and until he/she receives such assurance may, if commercially mssonable, suspend any performance for which the agreed return has not been received. "Commercially reasonable" includes not only the conduct of a party with respect to performance under this Agreement but also conduct with respect to other agreements, arising from or related to this Agreement, with parties to this Agreement or others, i.e., with USER's volunteers, vendors, or contractors. After receipt of a justified demand, failure to provide within a reasonable time, but not exceeding ten (10) days, such assurance VENUE LICENSE EVENT AND FACtI.1TY USE AGREEMENT Parkin aeud SeMcm bm I PSa+F Opening Page 5 of 9 of due performance as is adequate under the circumstances of the particular case is a repudiation of this Agreement. Acceptance of any irnproper delivery, service, or payment does not prejudice the aggrieved partyrs right to demand adequate assurance of future performance. 7.8 THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall be construed to create, and the patties do not intend to create any rights in third parties. 7.9 COVENANT AGAINST DISCRIMINATION. In connection with its performance under this Agreement, USER shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a'probibited basis'). USER shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, USER certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any USER activity, including but not limited to the following: employment, upgrading, demotion or transfer, recruitment orrecnritment advertising; layoff or temlination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that USER is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 7.9.1 Nothing contained in this Agreement shall be construed in any manner so as to require or permit any act which is prohibited by law. 7.10 SEVERABILITY. If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement, and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein. 7.11 GOVERNING LAW, VENUE, The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law. The venue for any dispute between the parties hereunder, or any dispute arising fiom or related to this Agreement shall be the Superior Court of the State of California, County of Riverside, Palm Springs Courthouse. 7.12 ATTORNEY'S FEES. In the event any action, suit or proceeding is brought for the enf nv ement of, or the declaration of any right or obligation pursuant to this Agreement, or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys' fees, from the losing party. 7.13 COUNTERPARTS AND ELECTRONIC TRANSMISSIONS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. A manually signed counterpart transmitted electronically or by facsimile shall be deemed a duly signed original. 7.14 SUCCESSORS, HEIRS AND ASSIGNS. Except as otherwise expresslyprovidedherein,this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, VENUE LICENSE, EVENT AND FACU TY USE AGREEMENT ftrift ROM SWMeti h= / PSff Op=bg Page 6 of 9 assigns, heirs, and personal representatives of each of the parties 7.15 FORCE MAJEURE. Neither Party shall be responsible for any liability, loss or damage to the other Party due to any failure of performance or delay in performance by reason ofany event of force majeure, including but not limited to acts of God, natural disasters, riots, incendiaries, power interruption, interi'erertce by civil or military authorities, compliance with governmental laws, rules, regulations or other authority, or any causes beyond either Parties' control. 7.16 RELATIONSHIP OF PARTIES. It is specifically understood and agreed by and between the parties hereto that neither party is acting as the agent of the other in any respect hereunder. Nothing contained in this Agreement shall be deemed, construed or represented by either parry or by any third person to create the relationship ofprincipal and agent. Neither party shall have authority, express or implied, to act on behalf of the other party as an agent, nor shall either party have any authority, express or implied, to bind the other party to other obligations. Furthermore, the parties hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the parties joint venturers or partners. 7.17 NON-LIABH= OF USER AND CITY OFFICERS AND EMPLOYEES. No officer or employee of either party shall be personally liable to the other, or any successor in interest, in the event of any default of breach by a breaching/defaulting party or for any amount which may become due to the other party or its successor, or for any breach of any obligation of the terms of this Agreement. 7.18 AMBIGUITIES. This Agreement is in all respects intended by each party hereto to be deemed and construed to have been jointly prepared by the parties hereto and the parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. [SIGNATURES TO FOLLOW] VENUE LICENSE, EVENT AND FACMM USE AGREEMENT !moles Ream saWcm Inc / pa1PF opaWq Page 7 of 9 CITY: CITY OF PALM SPRINGS Tj: APPROVED: �► By �. CM David H. Ready, PhD A City City Manager Date: 1 I Za AP7 AS TO FORM: By Jeff Ballinger, City Attorney Date: / 2~ 3 0— 2 0/ 9 USER: Resort Parking Services, Inc. By —(� �1)" -- David Dangleih General Manager APPROVED BY CITY MANAGER Date: r L I fm lin VENUE LICENSE, EVENT AND FACIIdTY USE AGREEMENT FftkWS Row" Sav1am mc. / PSffB q**g Pegs 8 of E UBBPr "A" (DOWNTOWN PARKING GARAGE FACHZM USER is restricted to the following sections: I North, 2 North, 3 North, 4 North, and 5 North of the Downtown Parking Garage, up to the appmved amount of parking spaces stated on the Temporary Valet Permit for this EVENT. All other sections must remain open and available for the public and employees. Shown are the street level facilities. 0 You Are Note CD Mwmatlon Mo* ® states ® Effivatm NOM PuWlc Parking Sectfont 1-8 . SOutr PublIc PaWng S=ni 9-14 valet Pkkup/Omp Off Paswgor Pldwp trap pry (Shiro Rlding, LUt, UOer, ac.F ftr. .o s>r 30 Mb John Paul Maier To: Jeff Ballinger-C Subject: RE: Film Festival Parking RUSH Agreement From: Jeff Ballinger-C Sent: Monday, December 30, 2019 3:29 PM To: John Paul Maier <john.maier@palmspringsca.gov>; Patrick Tallarico <Patrick.Tallarico@palmspringsca.gov>; Wendy Connor <Wendy.Connor@bbklaw.com> Subject: Fwd: Film Festival Parking RUSH Agreement This looks fine from a legal perspective. Wendy, please insert my signature and send back to John and Patrick ASAP. Jeff Ballinger (909) 528-9400 From: John Paul Maier Sent: Monday, December 30, 2019 1:17 PM To: Jeff Ballinger-C <Jeff.Ballinger-C@palmspringsca.gov> Cc: Patrick Clifford <Patrick.Clifford@palmspringsca.gov> Subject: Film Festival Parking RUSH Agreement Importance: High Good Afternoon Jeff, Attached is a rush agreement for your review. Can you sign off on this agreement and return to me asap? Note: The film festival starts tomorrow. Thank you,