HomeMy WebLinkAbout1AACITY COUNCIL STAFF REPORT
DATE: January 14, 2021 CONSENT CALENDAR
SUBJECT: CONSIDERATION AND APPROVAL OF AMENDMENT NO. 5 TO
DESTINATION PALM SPRINGS AGREEMENT-PS RESORTS.
FROM: David H. Ready, City Manager
BY: Marcus L. Fuller, Assistant City Manager
SUMMARY
The City Council is requested to consider and approve Amendment No. 5 to the
Destination Palm Springs Agreement with PS Resorts, a California mutual benefit
corporation, to extend the existing agreement for a period of five years effective January
1, 2021, with one optional three-year extension.
RECOMMENDATION:
1. Approve Amendment No. 5 to the Destination Palm Springs Agreement with PS
Resorts (A6187); and
2. Authorize the City Manager to execute the amendment.
BUSINESS PRINCIPAL DISCLOSURE:
PS Resorts is a California mutual benefit corporation. Mutual benefit corporations, like
other not-for-profit organizations, are created for social welfare purposes within the
meaning of Internal Revenue Code section 501(c)(4). They have no "owners" in the
sense that for-profit corporations do. A search of the Secretary of State of California
shows that, as of January 22, 2020, Aftab Dada was the Chief Executive Officer of PS
Resorts, Robert Hunt is the Secretary, and Steven Boswell is the Chief Financial
Officer. Tamara Stevens is listed as the Executive Administrator.
2City Council Staff Report January 14, 2021 --Page 2 PS Resorts Agreement I Amendment No. 5 BACKGROUND: In May of 2012, the City of Palm Springs and PS Resorts entered into a "Destination Palm Springs Agreement." PS Resorts was established as a mutual benefit corporation, consisting of representatives from each of the resort hotels within the City, who charge "resort fees" to guests staying at their hotels. The stated corporate purpose of PS Resorts is to "create, foster, and enhance events, attractions and activities that would attract visitors to Palm Springs, and otherwise promote Palm Springs as a premier destination." The 2012 agreement provided that, of the transient occupancy tax (TOT) that the City collected attributable to the "resort fees" (i.e., the "Resort Fee TOT"), the City would grant to PS Resorts fifty percent (50%) of that Resort Fee TOT. PS Resorts uses this revenue solely for the purposes of developing and facilitating events and attractions that directly relate to the City's tourism efforts, including special events and parades, conventions, and other activities that are intended to generate more visitors to Palm Springs to increase hotel room occupancy rates thereby increasing business for the City's retailers, restaurants and bars. The Agreement has been amended four times to extend the term of the agreement to December 31, 2020. Among the terms and conditions that were previously amended was creating an obligation of PS Resorts to fund a minimum of $225,000 annually for events, programs and activities as approved by the City Council. STAFF ANALYSIS: The current recommendation is to amend the existing agreement with PS Resorts for a fixed term of five years, effective January 1, 2021, with one optional three-year extension with mutual approval of the City Council and PS Resorts. Staff recommends this extension to ensure PS Resorts can continue to support the various tourism events in Palm Springs, with greater emphasis on events that will significantly increase local tourism in the post-COVID environment. Sustained revenue for PS Resorts will allow it to begin planning for future events that can be scheduled later in 2021 once the public health crisis caused by the COVI D pandemic has ended and the City's local tourism economy can fully reopen without any restrictions. Examples of the types of events supported by PS Resorts over the last several years includes helping to underwrite and decrease the cost of major conventions held at the Convention Center (i.e. ESRI), and with major events (i.e. Splash House, Tour de Palm Springs, PS Pride, Modernism Week), and with other new and local start-up events that are intended to expand the variety and type of attractions in Palm Springs to increase the number of tourists visiting the City.
3City Council Staff Report January 14, 2021 --Page 3 PS Resorts Agreement I Amendment No. 5 ENVIRONMENTAL IMPACT: Pursuant to the California Environmental Quality Act (CEQA), this item is categorically exempt under CEQA, in that it can be seen with certainty that there is no possibility that this action will have any effect on the environment. FISCAL IMPACT: As stated, the Agreement is funded solely by the Resort Fee TOT that is generated by the resort hotels that make up the members of PS Resorts. This funding has provided a stream of revenue to PS Resorts that was allocated directly back to tourism-related activities in Palm Springs, further enhancing and promoting Palm Springs and increasing business for all the City's hotels, restaurants, bars and retailers. In the current fiscal year budget, it is anticipated that PS Resorts would receive $545,000. Also, in accordance with the terms of the Agreement, PS Resorts will allocate $225,000 annually of its Resort Fee TOT revenue to events specifically identified by the City Council. SUBMITTED: Marcus L. Full r, P.E., P.L.S., MPA Assistant City Manager Attachments: 1. Amendment 5
4ATTACHMENT 1
5AMENDMENT NO. 5 TO DESTINATION PALM SPRINGS AGREEMENT PS RESORTS This Amendment No. 5 to Destination Palm Springs Agreement ("Amendment No. 3") is made and entered into, effective this_ day of _____ , 2021, by and between the City of Palm Springs, California, a California municipal corporation and charter law city ("City") and PS Resorts, a California mutual benefit corporation ("PS Resorts"). RECITALS A. City and PS Resorts have entered into a funding agreement, dated May 28, 2012, to create, foster, and enhance events, attractions, and activities that will attract visitors to Palm Springs and otherwise promote Palm Springs as a premier destination, (together, with the amendments referenced below and this Amendment No. 3, the "Agreement"). B. City and PS Resorts approved Amendment No. 1 to the Agreement on December 6, 2013, to extend the term of the Agreement for an additional three years through November 30, 2016. C. City and PS Resorts approved Amendment No. 2 on March 15, 2017, in order to modify certain terms and conditions to the Agreement, including extending the term of the Agreement to November 15, 2019. D. City and PS Resorts approved Amendment No. 3 on February 13, 2020, to extend the term of the Agreement to June 30, 2020. E. City and PS Resorts approved Amendment No. 4 on November 12, 2020, to extend the term of the Agreement on a month to month basis. F. City and PS Resorts desire to continue funding to PS Resorts for a long-term period to allow PS Resorts to fully plan for local tourism events to be held in the City in the post-COVID environment. AGREEMENT In consideration of the promises and covenants contained in this Amendment No. 5 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the PS Resorts agree: SECTION 1. Section 1 of the Agreement is amended to read as follows: "1. Term. Unless earlier terminated in accordance with Section 15 of this Agreement, this Agreement shall continue in full force and effect for a period of five (5) years, effective January 1, 2021. This Agreement may
6be extended by mutual agreement of the parties for a period of three (3) years." SECTION 2. Except as expressly modified by this Amendment No. 5, the Agreement shall remain in full force and effect according to its terms. The persons executing this Amendment No. 5 on behalf of the parties hereto warrant that they are duly authorized to execute this Amendment No. 5 on behalf of said parties and that by so executing this Amendment No. 5 the parties are formally bound to the provisions of this Amendment No. 5. In witness whereof, City and PS Resorts have executed and entered into this Amendment No. 5 as of the date first written above. CITY OF PALM SPRINGS, a California charter City and municipal corporation David H. Ready, Ph.D., City Manager ATTEST: Anthony Mejia, MMC City Clerk APPROVED AS TO FORM: Jeffrey S. Ballinger City Attorney PS RESORTS, a California corporation mutual Aftab Dada, President benefit Celeste Brackley, Vice President
7' ~-·. ., . t'' . ,' • .. ' . . . . . .•. ... ... ... ~~-.... , ~"':. ..... :: -···-.··._._· ... ,., ·.:-L ~-.. ,··. I ~-· . ~~ ·_ . _ -C~ty .ap~ r~Jt~Q_rts ~P.i>~V.~-~ ~~~~~~1 ~o.~ -i~~n. ~~liJ ~ s; ~:PP, iJi ~id¢~. ~o -Jl.1~~•~ •c¢r!P_n :te~~ _-:~~-.~oJlditjQJ\5. 19.:. ~~~ ~gree)n¢!lt, .il,l~~~P:g--~~P:~,. llj~ .teµn ·of tl\e .A~,~~?l~t,l-~v.epi~·!t~~~,..~Ol_9.. . .-. _.·. ... . , . :. . : _ . ·_ J)! ~lo/ ~(~~~ ':~eso~·.J~~&~ JO· -~Q!l~il~~ ftm4ln~~ _l9 ,pg lle$6~, :~~ •. -ipo~tlt lo_ Jn_ontli ·\lii$is, iln~il .June ·30, 202(); :bi~ ordej' t~ •dis.cuss =ajid_-.-.r~~~goti~t~ •ce~iii ·terms and ·co~d!~i~~ of 1h~ h~~qt that i?aY -~~ ·~ee~je t(,.-~~tlt P.~~~s. . . . . -. . . . : A<lREEMBNt -····· ::· ... • • r .,. ... . .'~ lg_ ~~d~a~~~: qf Ut~ ,·P!.~~~ :-~-~ ~~y~t~. ~~~tAJq thi~ ~~n~~~t ';t'f9~.) ~d . . otlief. ood and ·valuable . consideration·; the recei t ana C ~sufficienc of. which 'is .liereb . t•"•,(' g'"•"• .,. •-• '! . •• 'i"' • '' •' " t ,.. •< ~J;,' •"!,'" ... ,P.. · •·•' .,.,. . .,,. ••,• y ' ".o .,,••~'"" ' •I •• ;y , ~.••: -~9-)Yl~~~~-~-~~9)~:·~~-ihe-,S.l#.~~~;~~~-· · · · .. _•.-· ' · ·-.~ ~ · ~ -~-, S13@~i,_i1_. ~~o.n: 1 c,,rthei.~ is~~-#,;~ as tolkiws: .,. . . . :,,~~--. ~ !~-~~ Uill~·:tai-it~i:te~~t~~l'i~_'~c~~d~ce wtt)i $~c~on_ is~.~t -tN~ ~·rp.e~t, '@s Agre_~~t!_s~Q ~#µ#.~~ ~. ,~ foi~ ~Q e(fect ·p'n:_, m9ntJi to .month ··basis:-:endi ·. on June 30· -2020 unless'·exiended b. -.. mutual ·wntteli . _. • •.. ' ·, ~ ,. ,I ~J-. pg • . . _.. . .•·• ,t ·. .., . ~ •. . . . . ·• • • ;:, . . - , .. .., - . r ., • •. a · · mem.of·-th~ ·· ames.,, -· .. . · . · · ·· ,-,-~-. . . . ·,-...... , .f. ··; .. , ·;: .. . . ' . SECltoN· 2. ·s~6tibn :is -~f the,k ~--' .. ·,~,.: ent is amended ti, teaci as ·toiiows:. ·'-~ ;~~fi:.'.-.f~~,il-~:~,~~~ik~-~ ~~~~~ , · · ... ~: · ~~-Pity~~-~~-~~ ~clr~.~-di~.ii&ht ~ J~ijl\qtQ·:t1µs .A@~~• :~i BP.:Y ~ Wj~ 9-~ ~th9u\. caus~, .il~i9~i~ (~9).~yi ~lt!~~ilot\~ ·io ~ij· 9~~-~-1'1 ~.the event:this A · ement ·is -terminated without caus .. • ·PS -Resorts· .will retain .. ·.;, :•· •. ·; •• --~ ~--· ·• •.. •.,, .. ·n· •• . ..... •·. -~ -•··•• ··-• •· • •..•. ... · " •. : .. ..1 .. ' . '. 't • ·~ •• . . ""
8any funds paid to PS Resorts under this Agreement and PS Resorts will expend such tunas only in the manner and for the purposes provided in this Agreement• SP,0TION 3. Bl«=ePt as exp~ly modified by this Amendment No. 3, the Agieement shall ~ In full force "and effect according to Its terms. 11ie persons executina this Amendment No. 3 on behalf of the J)!lrties hereto wanant that they are duJy authorized ·19 execute ~ Amendment No. 3 on bobalf of iaid parties and t1iat by so ex~ this Amendment No. 3 the parties are foiiiially bowid to the provisi()ns of this Amendment No. 3. In wi~ ... whe.,f, Ci~ and PS Resorts havo executed and entered into this Amendment No. 3 as of the date first written above. CITY OP PALM SPRINGS, a Califomia charter City AITEST: APPROVBD AS TO FORM: City Attorney
9any funds paid to PS Resorts under this Agreement and PS Resorts will expend such fimds only in the manner and for the purposes provided in this Agreement.,, SECTION 3. Except as expressly modified by this Amendment No. 3, the Agreement shall remain in full force and effect according to its terms. The persons executing this Amendment No. 3 on behalf of the parties hereto warrant that they are duly authorized to execute this Amendment No. 3 on behalf of said parties and that by so executing this Amendment No. 3 the parties are formally bound to the provisions of this Amendment No. 3. In witness whereof, City and PS Resorts have executed and entered into this Amendment No. 3 as of the date first written above. CITY OF PALM SPRINGS, a California charter City .:=>~~ ~ David H. Rea~.-anagei-AITEST: APPROVED AS TO FORM: City Attorney SS$75.1817S\32686lll,l Tim Ellis, 'vice President APPROVED BY CllY COUNCIL Ahlg7 1K--, 2-11:2,P A3
10,•:..,.· -~· .t;. '~. . .... ~-1 •• ... ·. ' ' .. • . . ' ,•· .. .. , .. •'. . .~~...... -·r~ ' , .. ~ :: "" ··• , .. ,. .:~:-·; .. ··!#/:'·.-• • • I. A • ,. ' v. r ~ • i •,. t ·il' ,, ~:1 •• /:·~:/~ ••• ·: ;t~: ... ~_.jf .. ·':,.1::_·:: ._•_ .. ; ......... /.~~-ii:::,;,, .. _,; _,..,, , .. ,\•-.. ~;,i;,,,;·,, .. _·· .... :_,.,-~: .. ~11~-:fJ,.t,.~·, __ : -. • • !~-.f< ·'•' · -.::. AMENDMEN!ln~0.:;3'T(i·DESTINABON·PALM-;_SPRINGs:"AGREEMENT1·•• ••• • " ': • :11:;•••~-.••~~•·• .. ~'f.• "; • • ;..,; ... ~\f 1:~••~ I --:I: •,ct i"• ._ f'7,' -, II •~~p••.fa~ii•s""~o~~a~: .... l", •••-: •~•!-;,.,,..-;,.•":I"~•~ .. •••.,,.,,,., .. ; ;:st.;-,.~ .. r;, .. :•J.,;:~t• • I :•• • • :•, I f I .-,. ... '• ~-• • ·• -\ ··~ ... I .t.i:l' .. :!~ .. ~-&=~. . ,., -·., .,. .... . .-'. : I! . '., :~1 :~~ ~~i~~:;~•~-;~~~~~.~-~;~f-~~~~t,jo;:~>ij,j~~ ·;,~ ·':L•;, . --~~-:~~:· ~nt~r~,.iJi@lsff~~!!r~ :gtis~ l~~;.~fif~9~ni\i#.~ ~~~D-I~~-·\lY-·~4 -~~1.ffi¢.. 9i!>'-.~0f. > ~: :, ·· ~ · Pal~·s· !rit(s Galifotfii"·· :.:a·Califomia·nfmuci' al ;co• ·omtion·1an:a;.~nmef.•:1aw,-.ci~•i~Ci~~raoo· .. -....~•-: ·· : '":~•=;: •{,_•1!_: =--... J! -.. l ... ?, ... -r· •::11f•"'''\·1-,,._:-7-_r~., -·.-r,. ~-x. .-• -,, ... ,. :·: •. ---·.-:r,r..:.~fip=·: .. -.. ~!P.-.,1::tf~---~.,:'l~ .... ,r;v.."-·•:--., · ··-:=-"':.•~ -• • ., 1•:•., ::,,..,.;~fl, ... · ~., ,j·!I ' .. ·· .·.. ... . ..,,.,., ... PS~Reso" "' -,a.-caliro·· --iifmuwal .benefit-·cb~~-.r·ratioii.(:PS ~ResoftsID. "j.. • • ' < ·/t r~,. •.. · • · ·· · 1 ' / • ,. •• _:. : :~~~:y~ ::;~ :'.~ :~:~:.~;I:!T•;:: :;·:;~·;_?~~: ~:_: :.;~;f \ .\:,·.· }-~,: :.:~ :~h} (·:. _: :--:~_ , ·_ : /i '. ;;; .. _, , · .. ''-A:. Ci· -and P."S·Resorts·liave:\literett'iiito.a·.fimcfin~\L 'reeme"+-.dat&i.~if,t :28 ·-2012r· '. .· "' ... 10•,cr~tf-"~rosiet~:.-~d-;~ii{&l~etits :i~aa~~::~f~a1•a~iij_fflit.:~niluraiit~~i~tl,:i~, ·· · · .. , :' :. •• ,.-,-·fi,,• \•' !!: •• ~-.. ,'3..,: ! ·, ~-• , '.(.'11~1,""J '..,~•· :' • _.., • ; Ji., >~ •• ~ -:;'-'!l.l:"~•1'~ ••• '\"I:._ ":"';" .. ~ . l~1•.=•~• •.·"'•• • '!-,. """· _,. • ·• -.. r.1 •.1-•"14 .i(,·~;"~·. • r". "\ :., _. •• ,11_ .. .,•,:~ . js ;. · · ., . .,. '. .. an~f .oihetwis·e :·!. ?• romote \Palm . ,s .. ~n1r~-· ,as ;a~ remier{ tdestmaiio ..... · .. i(f · ·eilier· :witli ,tJie: -. . . . 'P.~·~•j<'•·;· ••.•-x·~·:,~•·'••"--P.r.•o,.r·.;V."" -~·· .. •·r• ,:fc•c:·~. ,,:,-•:ft.\ .. ,_ .. ·-·-··•'\'! .. -.··•,· ;,-9! -~-~·-··,,.,,_,_, ..... --.•·····. 't'• amendmentheferenced,below.and1his"AmeilcbnenfNo. 3-·r,the~~~A" •, meilt~!-\. · · ··: '('::, . : ;. : · ~ ~:· ; ~ ~~\7<',~"v ;. .. • . 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" ...... ·•.'4 •,.,, , •..•. _. •. , •• ' ..• ~ -·-.• ·'"' ....... ,: .. ·~·. , •. ·-· · ::io. ,monih;~bisif~ :en'di -·• ."'on June-1a·o ... 2020 iunes.1., exiendea ·.b ... ,mutual ~written . ?,~~~r,~~~:. -i· : ·: :·:~:•_···~·-:· ·: .---·.: ;,-:~-: .-::·,_ -:-.·:::··\· r: •·i_--. ..,, . ,:,·•-I'••, ~ •• • I ~ . . ~~gfiQ~_fi·;:~~ti~!l.lS of ~~:~~ln~tls ~~~~:~o ~~-~ ·rcmp~~t-:,, ., . .~.---_ ..... ~_-•-.-,~~tI1.~~:t~tiitlif,\"'.~~,.::.~~~-·~:iiljf•-t;i~-~#t~~--· · -!. ·-· · · .:&:cf ·· and ·PS!Resomfeach reservestlie-npfto ~term~itcfihis A· · cement anm ·· ·litii6 ---~~6f ~tir6ui:~~s~ · .. · ~ ,.t~~tifut~•,·3h ~ da;· s· \vHait"nbli~frol~:6~t .. " .,~~~ ... ·-fu:iii~ ~ent-fii~\A :~: di; t}!f;~~6ti1lal {ij~ ··ti'cl(r:.•~~-.~:Ji"s.·:~rti'•Mff~-' . ' ,·,·: ., .,, • :· .'=•. ~""!\t, ... ,-~:··~ !"• ., ... •.s,.•:""e.4 ·, ' .. ,9.., ... , .... :~ ....... -·_ ,:; . ·, :._·<. '. ,. ··~ , =-';"•'.;: ". i ~~5.~~;J,l#~~l~J ~. . '. ,,. : • I~~ I ' ., • i'':<J ... : .... . 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11any funds paid to PS Resorts under this Agreement and PS Resorts will expend such ftmds only in the manner and for the purposes provided in this Agreement." SECTION 3. Except as expressly modified by this Amendment No. 3, the Agreement shall remain in full force and effect according to its terms. The persons executing this Amendment No. 3 on behalf of the parties hereto warrant that they are duly authorized to execute this Amendment No. 3 on behalf of said parties and that by so executing this Amendment No. 3 the parties are formally bound to the provisions of this Amendment No. 3. In witness whereof, City and PS Resorts have executed and entered into this Amendment No. 3 as of the date first written above. CITY OF PALM SPRINGS, a California charter City ATTEST: APPROVED AS TO FORM: City Attorney SSS75.1817S\32686lll.l PSRESORT, a California utual benefit corporation =Fim Ellis, Vice Plesideuc • ~e&te ~N:¥Jey APPROVED BY cnv COUNCIL A~ti1 J~ l.\~O is
12any fimda paid to PS Resorts under this Ap,emeat and PS Resorts will exponcl such f\mc1s only in the manner and for the purposes provided in 1his Asrecmont • SBC]JQN 3. Bxcept as expressly modified by this Amondment No. 3, die A~ent shall ~ In tbll force ~ effect according to Its ~-t Tho penons executing this Amendment No. 3 on behalf of the parties hereto wanant that they~ duly authoriacl t, execute this Amendment No. 3 on bobalf of iald parties and that by so execSutin1 this Amendment No. 3 tho parties me fonnally bound to tho provisions oftbls Amendment No. 3. In witn.ess whereo( City and PS Resorts havo executed and entered into this Amendment No. 3 as of the date first written above. ~ w CITY OP PALM SPRINGS, a Califomia charter City ATIBST: Anthony Mejia, MMC City Clerk APPROVBD AS TO FORM: City Attorney APPROVED BY CllY COUNCIL li"1K1 1rt: t-lzZp A3
13AMENDMENT NO. 2 TO DESTINATION PALM SPRINGS AGREEMENT PS RESORTS . · This Amendment No. 2 to the Destination Palm Springs Agreement ("Amendment") is made and entered ·into. this 15th day of March, 2017, by and between the City of Palm Springs, California, a California charter city ("City"), and PS-Resorts, a California m\Jtual benefit corporation f'PS Resorts"). RECITALS A. City and PS Resorts have entered 'into .a funding Agreement, dated May 28, 2012, to create, foster, and enhance events, attractions, and activities that will attract vi$.itors to Palm Springs and otherwise promote Palm Springs as a premier destination, (the "Agreemenr). · B. City Council approved Amendment No. 1 to the Agreement on December 6, 2013, to extend the term of the Agreement for an additional three· years through November 30, 2016. C. City and PS Resorts are agreeable to modifying certain terms and conditions to the Agreement pursuant to the terrns of this Amendment No. 2 . . D. City and PS Resorts desire to continue funding to PS Resorts in the furtherance 9f its purpose and the purpos·es of the Agreement. AGREEMENT In consideration .of the promises .and covenants contained in this Amendment No. 2 and other good and valuable consideration, the City and the PS Resorts agree: SECTIO~ 1. Section 6 of the Agreement is amended to read: 6. Funding. (a) ·payment to PS Resorts. Subject to Section 2 herein, the City agrees to grant to PS Resorts an annual amount equal to fifty percent (50%) of the net .. transient occupancy tax revenues .paid to and retained ~Y the City, attributed so.lely to resort fees (the "Resort Fee TOT") paid t9 and collected by the· member hotels, of PS Resorts, for thirty-six consecutive calendar months, commencing on December 1, 2016, and through November 30, 2019. PS Resorts agrees to continue its purpose to create, foster, and enhance events, attractions, and activjties that will attract visitors to Palm Springs and otherwise promote Palm Springs as a premier destination, {the "Proj~ct"), subject to the terms and conditions of the Agreement' as hereby amended. For the purposes of this Agreement, unet transient occupancy tax revenues" means transient occupancy tax revenues paid to the City and attributed solely to resort fees ·paid to· and collected by th~ member hotels of PS Resorts. · Destination Palm Springs Amend. No. 2 PS RESORTS Page 1 of 4
14' '• .,,---.... (b) Contingent on ~ding. The obligations of the City ~~el' this Amendment No. 2 are contingent upon the availability of funds and inclusion of sufficient funds for the payment of any or all obligations hereunder In the budget approved b.y the City Council each fiscal year this Agreement, as amended, remains in effect or operation. In the event such funding is terminated or reduced, the City Manager may terminate this Agreement, as amended I to reduce the City's obligations, if any, or modify this Agreement, without penalty. The decision of the City Manager shall be binding on PS Resorts. The City Manager shall provide PS Resorts with written notification of such determination and PS Resorts shall immediately comply with the City Manager's decision. (c) Sponsorships. All events, programs, and/or activities of PS Resorts where_ sponsorships are acknowledged shall include acknowledgement of sponsorship of both PS Resorts and the City of Palm Springs. SECTION. 2. Section 1 of the Agreement is amended to read: 1. Term. Unless earlier terminated in accordance with Section 15 of this Agreement, this Agreement shall continue in full force and effect for a period of three (3) years ending on November 30, 2019, unless extended by mutual written agreement of the parties. SECTION 3. Subsection (c) of Section 6, titled "Funding," added by Amendment No. 1 to the Agreement, is revised to read: (c) Funding of Council Requested Events,. Programs, or Activities. PS Resorts commits to fund a minimum of $225,000 annually during the term of the Agreement, as amended, for expenses for events, programs, and/or activities as requested by the City Council. SECTION 4. Section 9, "Covenant against Discrimination.'' of the Agreement is revised to read: 9a. Covenant Against Discrimination. In connection with its performance under this Agreement, PS Resorts shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. PS Resorts shall ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitme_nt advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, Including apprenticeship. Destination Palm Springs Amend. No. 2 PS RESORTS Page2 of4
15C CJ SECTION 5. Section 9b is added to the Agreement to read: 9b. Non-liability of City Officers and Employees.-No officer or employee of the City shall be personally liable to the PS Resorts, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to PS Resorts or to its successor, or for breach of any obligation of the -terms of this Agreement. SECTION 6. Section 9c is added to the Agreememt to read: 9c. Conflict of Interest. PS Resorts acknowledges that no officer or-·employee of th~ City has or shall have any direct or indirect financial .interest in this Agre·ement nor shall PS Resorts enter into any agreement of any kind with any such officer or employe~ during the term of this. Agreement a1;1d for one year ·thereafter. PS Re$orts warrants that PS Resorts ,has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. SECTION 7. The persons executing this Ame,ndment on behalf of the parties hereto warrant that they are duly authorized to execute this Amendment on ·behalf of said parties and that .by so executing this Amendment the parties hereto are formally bound to the -provisions of this Amendment. Destination Palm Springs Amend. No. 2 PS RESORTS Page·3of4
16SECTION 8. City and PS Resorts agree that the terms of the Agreement shall remain unchanged and in full force and effect, except as specifically provided in this Amendment No. 2. In witness whereof, City and PS Resorts have executed and entered into this Amendment No. 2 as of the date first written above. CITY OF PALM SPRINGS, A California Charter City ATTEST: Kathleen D. Hart, Interim City Clerk Destination Palm Springs Amend. No. 2 PS RESORTS Page4 of 4 Tim Ellis, Vice President
17AMENDME~T. NO. 1 TO DESTINATION PALM SPRINGS AGREEMENT PS RESORTS ' This Amendment No. 1 to the Destination Palm Springs Agreement. ("Amendment'} is made and entered into this 6 TH day of December, 2013, by and between the City of Palm Springs, California, a California charter city ("City), and PS Resorts, a California mutual benefit corporation ("PS Resorts"). RECITALS A. City and PS Resorts have entered· into a funding Agreement, dated May 28, 2012, to create, foster, and enhance events, attractions, and activities that will attract visitors to Palm Springs \and otherwise promote Palm Springs as a premier destination rAgreement"). 8. City and PS Resorts .are agreeable to· modifying certain terms and conditions to the Agreement pursuant to the terms of this Amendment. I C. City and PS Resorts desire' to continue funding· to PS -Resorts in the furtherance of its purpose and the purposes of the Agreement. AGREEMENT -In consideration of the promises and' covenants contained in this Amendment and .other good and valuable consideration, the City and the PS Resorts agree: SECTION 1. City agrees to grant to PS Resorts an annual amount equal to fifty percent (50%) of the net transient occupancy tax revenues paid to and retained by the City, ~ttributed solely to resort fees paid to and collected by the member hotels of ·PS Resorts ("Resort Fee TOTn) for thirty-six consecutive calendar months, qommencing on December 1, 2013, and PS Resorts agrees to continue the Project, and create, fos.ter, and enhance events, attractions, and activities ·that will attract visitors to Palm Springs and otherwise promote Pal_m Springs as a premier destination, subject to the terms and conditions of the Agreement. For the purposes of this Agreement "net transient occupancy_ tax rev'~nues" means transient occupancy ta~ revenues paid to the City and attributed solely to resort fees paid to and collected -by the member hotel$ of PS Resorts less any rebates, refunds, or incentive program payments pursuant to Chapter 5.26 of the Palm Springs Municipal Code or by agreement between the City .and a Developer or Operator of a hotel. · ,. SECTION 2: Section 1 of the Agreement is ame·nded to read: 1. Term. Unless earlier terminated in accordance with Section 15 of this Agreement, this Agreement shall continue in full force and effect for a period.of three (3) years ending on November 30, 2016, unless extended by mutual written agreement of the parties. ' Destination Palm Springs Amend. No. 1 PS RESORTS Page 1 of2 ORl<:ilNAL tilU JJ-40/0R AGREEMfMt .
18SECTION 3. Subsection (c) of Section 6, titled "Funding," is added to the agreement to read: (c) Funding of the Palm Springs Trolley by PS Resorts. PS Resorts commits to fund a minimum of $100,000 annually during the life of this agreement extension to the proposed City of Palm Springs trolley program, as generally described at the City Council meeting of November 20, 2013, and subject to further refinement and modification. One-half of each annual payment to the City for this purpose will be due and payable on May 1 and November 1 of each year this agreement remains in effect. PS Resorts shall be recognized as a sponsor of the Palm Springs Trolley Program in a manner as determined by the City Manager and PS Resorts. In the event that City Council does not approve such a trolley program, PS Resorts will be relieved of this obligation -which would be in writing from the City Manager. SECTION 4. The persons executing this Amendment on behalf of the parties hereto warrant that they are duly authorized to execute this Amendment on behalf of said parties and that by so executing this Amendment the parties hereto are formally bound to the provisions of this Amendment. SECTION 5. City and PS Resorts agree that the terms of the Agreement, shall remain unchanged and in full force and effect, except as specifically provided in this Amendment. In witness whereof, City and PS Resorts have executed and entered into this Amendment as of the date first written above. CITY OF PALM SPRINGS, A California Charter City ATTEST: APPROVED AS TO FORM: D~dr~ttorney Destination Palm Springs Amend. No. 1 PS RESORTS Page 2 of 2 APPROVED BY CITI COUNCIL ,i.\)( .\1> ~~ t>.'<J\~\
19DESTINATION PALM SPRINGS AGREEMENT THIS DESTINATION PALM SPRINGS AGREEMENT (the "Agreement") is made and entered into this 7bay of February, 2012, by and between the City of Palm Springs, a California charter city rcity"), and PS RESORTS, a California mutual benefit corporation ("PS Resorts"). Collectively the City and PS Resorts are referred to as the Parties. RECITALS A. PS Resorts is a recently organized mutual benefit corporation, consisting of representatives from each of the resort hotels operating within the corporate limits of the City and who charge or assess resort fees. The purpose of PS Resorts is to create, foster, and enhance events, attractions, and activities that will attract visitors to Palm Springs and otherwise promote Palm Springs as a premier destination ("Project"). 8. City is a charter city that levies and collects a transient occupancy tax ('TOT") on guests for the privilege of occupancy at hotels, motels, and other visitor serving facilities as provided in Chapter 3.24 of the Palm Springs Municipal Code. C. It is the desire of the City to provide an initial "seed" grant of funds to PS Resorts and assist PS Resorts in the furtherance of its purpose and the purposes of this Agreement, and to ensure that there is an appropriate level of start-up funds to reasonably enable PS Resorts to commence the Project. NOW, THEREFORE, in consideration of the mutual agreements contained herein, City agrees to grant to PS Resorts an annual amount equal to Fifty Percent (50%) of the TOT revenues paid to the City and attributed solely to resort fees paid to and collected by the member hotels of PS Resorts ("Resort Fee TOT") for thirty-six consecutive calendar months, commencing on December 1, 201 O and PS Resorts agrees to use funds provided for herein to undertake the Project, and create, foster, and enhance events, attractions, and activities that will attract visitors to Palm Springs and otherwise promote Palm Springs as a premier destination, subject to the following terms and conditions: AGREEMENT 1. Term. The term of this Agreement shall commence on December 1, 2010 and terminate on November 30, 2013, unless terminated pursuant to the provisions of Section 15 of this Agreement. ORJG!N L BID AND/OR I\GHEEMENT
202.. Project. PS Resorts shall initiate and reasonably pursue its •purpose, which ·includes the creation, fostering, and -enhancement of events. attractions, and activities that Will attract visitors to Palm Springs and otherwise promote Palm -Springs as a premier destination. · 3. Status of PS.~esorts. PS Resorts is an independent entity, apart from the City, ~nd shall be whoHy responsible for the· manner in which it performs the Project as required by the terms of this Agreement. Nothjng in -this .Agreement shall be construed as cr~ating a relationship of employer and employee or principal and agent between the City and PS Resorts or any of PS Resorts• agents or employees. The City shall neither .hav~ nor exercise any control or direction over the methods by which PS Resorts shall-perform its obligat(ons urider this Agreement. The City shall not be responsible or liable. for the-acts or failure -to act, whether int~ntional or negligent, of any employee, agerit, or vo1unteer of PS Resorts. PS Resorts shall own any event, event names. concepts and the like, it produces •. including events produced with the funds to be provided. 4. 0,peration as a Non-Profit. PS. Resorts -shall at .all times during_ ,the term of this Agreement operate and otherwise conduct. itself as a bona fide mutual benefit corporation in full compliance with the laws of the State of-California and shall timely file an. statement1 docu_ments, and submlssions required under the laws of the State o.f California and the United States·. PS _Resorts shall also implement appropriate financial procedures and administrative practices that will ensure that the Board of Directors of PS Resorts will be accountable for all-actions taken in the name of PS Resorts. Such procedures and pra~ices shall include, without limitatiQn: (a) Inclusion on the Board of Directors a representative from e~ch hotel in the City that collects transient occl1pancy taxes on resort fees. Notwithstanding the foregoing, PS Resorts shaH not be required to have more than twelve (12) directors. In the event membership exceeds .twelve (12), directors shall be ·elected by a ~ajority of members. (b) Board of Directors review and approval of each and every expenditure in excess of :One Thousand Dollars ($1,000.00), and the preparation of minutes of all Board meetings that reflect an actions taken during -each Board meeting. PS Resorts warrants that it has, or that it will timely secure all necessary li_censes and permits required by·the laws of the Un_ited States, State of California,· or the City, and all other appn;,priate ·governmental agencies, and agrees to maintain these licenses. and permits in .effect for the duration of this Agreement. In addition, PS Resorts shall use its best efforts to ensure that its officers, ~irectors. employees, agents, and contractors conduct themselves in compliance with the laws and licensure requirements including, without ·limitation-, compliance with laws applicable to non discrimination, se,cuai harassment. and ethical behavior. 5. Delegation and -Assignment. PS Resorts ·shall not delegate or assign or otherwise transfer its duties, nor assign its rights under this Agreement, either In whole or in part, without the prior -written cpn~ent of th~ City's City Manager. The request must be in writing with a full expl~nation for the request. Any consent granted by the 2
21(J City Manager may be conditioned upon and subject to certain actions by .PS Resorts as determined by th~ City Manager. Any attempted assignment or delegation ·in derogation of this Section 5 ~hall be deemed void. It is understood and agreed that PS· Resorts will engage consultants and contractors to .assist it in accomplishment of its goals and ·purposes, and such engagements will not be deemed to viorate the rest.rictions set forth •in this Section 5. ·6.. Funding; (a) Paym~nt to PS Resorts. The City shall pay to PS Resorts on a monthly · basis fifty percent (50%) of the Resort Fee TOT based on the prior month's collections by the City. Upon execution of this Agreement, the City shall pay to PS Resorts the accrued sum of. 50% of Resort Fee TOT from December 1, 201 0 through the last complete month preceding the execution of this Agr~ement less any sums previously expe_nded by the City or otherwise authorized by th~ City Manager for the benefit of the resort hotels of the· City of Palm ·Springs. (b) Conti'1gent on Funding and Budget. The obligations of the City under .this Agreement. are contingent upqn the availat)ility of funds and ·inclusion of sufficient funds for ·the payment of any or all obligations hereunder in the budget approved by the City CouncH eacb fiscal year this AgrE;!ement remains in• effect or operation. In the event such funding is terminate.d' or reduced, the City Manager may terminate this agreement· reduce the Cjty's .obligations, if any, or modify this Agreement, without penalty. The decision of the ·City M_anager shall be binding on PS Resorts. The City Manager shall provide PS Resorts with written. nqtification of such determination .and PS Resorts shall immediately comply with the City Manager's decision~ Under no circumstances shall the City terminate this Agreement prior to June 30, 2012. . 7. Indemnification. PS Resorts agrees to and shall ,indemnify, defend. and hold harmless City and. its, officers, agents, and employees from ~nd against all liability, clalms, losses and demands, damages to· property or injuries ,to or death of any person or persons, including property of officers, employees, or ~gents of City, including defense costs Oogether, "Claims"),. whether resulti"g• from court action or otherwise, resulting from, related in any manner to, or arising_ out of the intentional, r:nalicious, negligent acts, inactions, errors or omissions of PS Resorts, its office.~, employees, agents, and/or its Subcontractors jn the performance of this Agreement, except to the extent such ctalms are due solely by thenegligence. or willful misconduct of the City, its ,officers, agents, or employees. · 8. ··Insurance. Without limiting PS Resorts· liability ·for indemnification of City as set forth in Section 7 above, PS Resorts shall obtain and maintain in effect, during the term · of this Agreement. reasonable insurance coverage ·consistent with best practices applicable to non-profit corporations doing business in the State of California. 9. Covenant against Discrlrrdnatlon. In the J)erformance of this Agreement, PS Resorts ~hall not engage in, nor permit any employee or agent to engage in discrimination in employment of persons or provi$ion of 'Services ·or ~sslstance, nor exclude any person from participation in, nor deny any person the benefits of. nor or subject any persoo to discrimination under any-program or activity funded ·In whole or In 3
22part •with funds under .this Agre~ment -on the grounds of (ace, religion~ color, national origin, ancestry, physical-handicap, medical condition, marital statu$, gender· or sexual orientation, except as permitted by applicable provisions of Federal and State law. PS R~sorts shall comply with Titl~ II of the American$ with .Disabilities Act, (42 U.S.C. §12101, et. seq.) as it relates to public accommodations. 10. Notice. Any notice, demand, request, consent; approval, or communication eitt,er party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by United States Postal Service,. pre-paid, first-class mail to the address set forth below. Either party may change its-address by notifying the other party of -the change of address in. writing. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. To City: To PS Resorts: City of Palm Springs Attention: City Manager 3200 E. Tahquitz Canyon W_ay Palm Springs, California· s2is2 PS Resorts, President Chamber of Commerce Offices 190 W Amado Rd Palm Springs, CA 9226~ 11. Integrated Ag_r,ement. This Agreement contains .all of the agreements of the parties and cannot be amended or modified except t,y the mutual consent of the parties by an instrument in writing. 12. Amendm~nt. This Agreement may be amended at any time -by the mutual consent of the partie$ by an instrument in writing. 13. S~verablllty. In the event that any one or more of the phrases, sentences,. clauses, paragraphs, or sections oo_nfained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect .any of th~ remaining phrases, sentences, clauses, paragraphs, or sections of-this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 14. Audits. P~ Resorts shall prepare and maintain adequate records of it~. performance under this agreement . in sufficient detail to permit an evaluation of PS R~sorts' use of funds for the uses and purposes as generally provided in this Agreement. In this regard, PS Resorts•· books and financial records shall be made available to the City Manager or the City Manager's designee for in$pection at the qty Manager's request. 15~ Termination. Except as oth,rwise expressly provided in. this Agreement the -City and PS Resorts each reserves the right to. -terminate this Agreement at any time, without cause, .upon ninety (90),dayswritten notice to the other party, but shall not 4
23be terminated by· the City prior to June 3_0, 2012. In the -event the Agreement js terminated without cause; -PS R~orts will retain any funds paid to PS Resorts under thi~ Agreement and PS ReSQrts will expend such funds only in the manner and for the purposes provided in ·this Agreement. 16. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing ,this Agreement the -parties hereto are formally bound to the provisions of this Agreement. SIGNATURES ON FOLLOWING PAGE 5
24IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. APPROVED BY CITY COUNCIL \ · ik-\ 1' :a <2 l\b\i1 \ Date: __ ;}',_~---..,,.......~---ATTEST: Dougla C. Holland City Attorney Date: k/6/{) dO/d-------------Its: Date: ~( ( 0 J/Oi i_ Its: 6