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HomeMy WebLinkAbout12/6/2006 - STAFF REPORTS - 5.A. ;dF P A`M Sp. ry + lip u m c4LI It CITY COUNCIL STAFF REPORT DATE: December 6, 2006 NEW BUSINESS SUBJECT: AWARD CONTRACT FOR VIDEO ADVERTISING IN THE AIRPORT PASSENGER TERMINAL FROM: David H. Ready, City Manager BY: Aviation Department SUMMARY The requested action will provide an additional advertising medium in the Airport's terminal. The Contract for the specialized video advertising will provides 30% of gross revenues to the City for the first year, 35% of gross revenues for the remaining two years of the Contract, and a term to finish December 31, 2009. RECOMMENDATION: • 1. Adopt Minute Order No. authorizing award of contract to Fluid Images, Inc. to provide Specialized Video Advertising Services in the Airport Terminal for a term that finishes December 31, 2009. 2. Authorize City Manager to execute all necessary documents. STAFF ANALYSIS: The video advertising proposed is very specialized, of a high quality and is often used in the making of major motion pictures. Because this is specialized advertising, there will be no or little effect on the Airport's current advertiser. The terms of this contract includes: ' Exhibit A Section 2 subsection 2.5 — Concessionaire shall reserve a minimum of 10% of the total advertising space within the Airport Terminal for display of such public service related matters. Exhibit A Section 3 — 3.1 Special Events - The Concessionaire shall provide promotional support for up to two Airport special events each year. The promotional support video advertising, at a minimum, shall play ads at least 30 days per event. A ITEAA NO. �'` City Council Staff Report (December 6, 2005) -- Page 2 Video Advertising Contract Award 3.2 Graphic Support - The Concessionaire shall provide graphic design support for up to two graphic pieces (11 x17 both sides) per year. 3.3 City of Palm Springs Promotions - The Concessionaire shall display advertising promoting the City of Palm Springs throughout the term of the contract. 3.4 City_o_f Palm Springs Merchant Discount - The Concessionaire shall provide a 25% discount from the advertised rate schedule to City of Palm Springs Merchants throughout the term of the contract. At its regularly scheduled meeting on December 6, 2006, the Airport Commission recommended the City Council award this Contract to Fluid Images, Inc. FISCAL IMPACT: Finance Director Review: It is anticipated that gross revenues would be approximately $200,000 per year, and the City could expect 30% of this ount in the first year. i Richard S. a s , A.A. ee or of Aviation • David H. Ready, City r Attachments Minute Order Contract 0052 MINUTE ORDER NO. AUTHORIZING AWARD OF CONTRACT TO FLUID IMAGES, INC. TO PROVIDE SPECIALIZED VIDEO ADVERTISING SERVICES IN THE AIRPORT TERMINAL FOR A TERM THAT FINISHES DECEMBER 31, 2009. I HEREBY CERTIFY that this Minute Order, authorizing award of contract to Fluid Images, Inc. to provide Specialized Video Advertising Services in the Airport Terminal for a term that finishes December 31, 2009., was approved by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 6th day of December, 2006. JAMES THOMPSON City Clerk CITY OF PALM SPRINGS CONCESSION AGREEMENT FOR Airport Terminal Advertising THIS CONCESSION AGREEMENT (herein "Agreement"), is made and entered into this day of 2006, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and Fluid Images, Inc., an Oregon corporation, (herein "Concessionaire"). The parties hereto agree as follows: 1.0 SERVICES OF CONCESSIONAIRE 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Concessionaire shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Concessionaire represents and warrants that Concessionaire is a provider of first class work and services and Concessionaire is experienced in performing the work and services contemplated herein and, in light of such status and experience, Concessionaire covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Concessionaire's Proposal. The Scope of Service shall include the Concessionaire's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Concessionaire shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Concessionaire shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Concessionaire's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. l•Jf)� 1 1.5 Familiarity with Work. By executing this Contract, Concessionaire warrants that Concessionaire (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Concessionaire warrants that Concessionaire has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Concessionaire discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Concessionaire shall immediately inform the City of such fact and shall not proceed except at Concessionaire's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Concessionaire shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Special Reauirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the City shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. 3.0 PERFORMANCE 3.1 Performance Area. Concessionaire shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform Fluid Images, Inc. 2 Concession Agreement Airport Terminal Advertising 00j 155 all services within the areas established in the "Areas of Performance" attached hereto as Exhibit "D", and with the Equipment listed in Exhibit "E", if any, and incorporated herein by this reference. 3.2 Force Majeure, The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Concessionaire, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Concessionaire shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Concessionaire be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Concessionaire's sole remedy being extension of the Agreement pursuant to this Section. 3.3 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until December 31, 2009, 4.0 COORDINATION OF WORK 4.1 Representative of Concessionaire. The following principals of Concessionaire are hereby designated as being the principals and representatives of Concessionaire authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith, Doug Barry Fluid Images, Inc. 703 N Larch Street P.O. Box 3500, PMB 189 Sisters, OR 97759 Phone (541) 549-6029 Fax (541) 549-8054 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Concessionaire and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, Fluid Images, Inc. 3 Concession Agreement Airport Terminal Advertising the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Concessionaire without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Concessionaire's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Concessionaire shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Concessionaire, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Concessionaire shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers : restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Concessionaire, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Concessionaire or any surety of Concessionaire of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local SubConcessionaires"). Concessionaire hereby agrees to use good faith efforts to award subcontracts to Local SubConcessionaires, if Local SubConcessionaires are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local SubConcessionaire, the Concessionaire shall submit evidence to the City that such good faith efforts have been made or that no Local SubConcessionaires are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local SubConcessionaires. The City may consider Concessionaire's efforts in determining whether it will consent to a particular SubConcessionaire. Concessionaire shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Concessionaire. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Concessionaire, its agents or employees, perform the services required herein, except Fluid Images, Inc. 4 Concession Agreement Airport Terminal Advertising �(^ �(i. 0 as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Concessionaire's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Concessionaire shall perform all services required herein as an independent Concessionaire of City and shall remain at all times as to City a wholly independent Concessionaire with only such obligations as are consistent with that role. Concessionaire shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Concessionaire in its business or otherwise or a joint venturer or a member of any joint enterprise with Concessionaire. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Concessionaire shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least $1,000,000 per occurrence and $2,000,000 aggregrate bodily injury and property damage including coverages for contractual liability, personal injury, independent Concessionaires, broad farm property damage, products and completed operations- (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit "B". The above insurance shall be primary and no other insurance maintained by City will be called upon to contribute to a loss. (Reference Section 5.3 regarding sufficiency.) The above insurance will contain a 30 day notice of cancellation. All polices except Workers Compensation shall have the City named as an additional insured. Workers Compensation insurance shall contain a waiver-of-subrogation clause in favor of City, its officers, directors, officials, agents, employees, volunteers, and representatives. In the event any of said policies of insurance are canceled, the Concessionaire shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Fluid Images, Inc. 5 Concession Agreement Airport Terminal Advertising "IS I z, C)nB. Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Concessionaire has provided the City with Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the City. The Concessionaire agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Concessionaire may be held responsible for the payment of damages to any persons or property resulting from the Concessionaire's activities or the activities of any person or person for which the Concessionaire is otherwise responsible. In the event the Concessionaire subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Concessionaire and such SubConcessionaire shall require the SubConcessionaire to maintain the same polices of insurance that the Concessionaire is required to maintain pursuant to this Section- 5-2 Indemnification. Concessionaire agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, of any nature (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the Concessionaire's performance of the work, operations or activities of Concessionaire, its agents, employees, Subconcessionaires, or invitees, or the exercise of the rights provided under this Agreement, provided for herein, or arising from the acts or omissions of Concessionaire hereunder, or arising from Concessionaire's performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Concessionaire will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Concessionaire will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Concessionaire hereunder; and Concessionaire agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Concessionaire for such damages or other claims arising out of or in connection with, the negligent Fluid Images, Inc. 6 Concession Agreement Airport Terminal Advertising 0000 performance of or failure to perform the work, operation or activities, or the exercise of rights under this Agreement, of Concessionaire hereunder, Concessionaire agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A-" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City ("City Manager") due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Concessionaire agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Concessionaire shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10) days of receipt of notice from the City Manager. 6.0 NON-DISCRIMINATION 6.1 Non-discrimination. Concessionaire for itself, its successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree (a) that no person on the grounds of race, creed, color, national origin, sex, age, or handicap shall be excluded from participation in or denied the use of said Assigned Premises, (b) that in the construction of any improvements on, over, or under such Assigned Premises and the furnishing of services, no person on the grounds of race, creed, color, national origin, sex, age, or handicap shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, and (c) that Concessionaire shall use the Assigned Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulation, Department of Transportation, Subtitle A, Office of Secretary, Part 21, Non- Discrimination in Federally-Assisted Programs of the Department of Transportation- Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations have been or may be amended. In the event of the breach of any of the foregoing non- discrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess said Assigned Premises and the facilities hereon, and hold the same as if said Agreement had never been made or issued. This cancellation provision shall not be effective until the procedures of Title 49, Code of Federal Regulation, Part 21, are followed and completed including exercise or expiration of appeal rights. 62 Disadvantaged Business Enter rises/Affirmative Action. Concessionaire acknowledges that the provisions of Title 49, Part 23 of the Code of Federal Regulations, Disadvantaged Business Enterprises (DBE), and Title 14, Part 152 Fluid Images, Inc. 7 Concession Agreement Airport Terminal Advertising CID of the Code of Federal Regulations, Affirmative Action Employment Programs, are applicable to the activities of Concessionaire under the terms of this Agreement, unless exempted by said regulations, and hereby agrees to comply with said regulations, as now or hereafter amended or any successor regulations, and all requirements of the Department, the FAA and the U.S. Department of Transportation, in reference thereto. These requirements include, but are not limited to, the compliance with DBE and/or Employment Affirmative Action participation goals, the keeping of certain records of good faith compliance efforts, which would be subject to review by the various agencies, and the submission of various reports.. Failure to comply with these requirements shall be grounds for default and termination of this Agreement. Concessionaire agrees that it will not discriminate against any business owner because of the owner's race, color, national origin or sex in connection with the award of performance of any concession agreement covered by 49 CFR, part 23, of the Code of Federal Regulations, as now or hereafter amended or any successor regulation. Any termination pursuant to this Article 20.02 shall not be effective until the procedures specified in said federal regulations or established by City are completed, including exercise or expiration of any appeal rights. 6.3 Required DBE Statements. "This Agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR part 23. The Concessionaire or contractor agrees that is will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract, purchase lease agreement, or other agreement covered by 49 CFR part 23." The Concessionaire or contractor agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR part 23, that it enters and cause those businesses to similarly include the statements in further agreements. 6.4 DBE Program Requirements. Concessionaire shall, at all times, remain in compliance with applicable Federal Regulations pertaining to the participation of DBEs in Airport contracting opportunities. Although the city has not established an ACDBE goal for this project, participation by ACDBEs in this opportunity is encouraged. Concessionaire is required to submit, in the format prescribed by the City, a quarterly report of ACDBE participation, including the ACDBE participants' name, address, contact information, type and dollar amount of participation and percentage of participation. Concessionaire shall assist the City in identifying participants in the business opportunities covered by this Agreement who may be eligible for certification as a DBE. 6.5 Non-liability of CitV Officers and Employees. No officer or employee of the City shall be personally liable to the Concessionaire, 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 the Concessionaire or to its successor, or for breach of any obligation of the terms of this Agreement. Fluid Images, Inc 8 Concession Agreement Airport Terminal Advertising .� 6.6 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Concessionaire warrants that it has not paid or given and will not pay or give any third parry any money or other consideration for obtaining this Agreement. 6.7 Covenant Against Discrimination. Concessionaire covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Concessionaire shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 6.8 Non-Discrimination and FAA Required Clauses 6.8.1 Concessionaire for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this lease for a purpose for which a DOT program of activity is extended or for another purpose involving the provision of similar services or benefits, Concessionaire shall maintain and operate such facilities and services in compliance with all other requirements impose pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle ' A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 19645 and as said Regulations may be amended. 6.8.2 Concessionaire for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that. (1) no person on the • grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that Concessionaire shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49; Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination In Federally-Assisted Programs of the department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. Fluid Images, Inc. 9 Concession Agreement Airport Terminal Advertising 0011 2 6.8.3 That in the event of breach of any of above nondiscrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess said land and the facilities thereon, and hold the same as if this Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. 6.8.4 Concessionaire shall furnish its accommodation and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED, THAT the Concessionaire may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers. 6.8.5 Non-compliance with paragraph above shall constitute a material breach thereof and in the event of such non-compliance, the City shall have the right to terminate this Agreement and the estate hereby created without liability therefore or at the electing of the City or the United States either or both said Governments shall have the right to judicially enforce provisions. 6.8.6 Concessionaire agrees that it shall insert the above five provisions in any lease agreement by which Concessionaire grants a right or privilege to any person, firm or corporation to render accommodations and/or services to the public on the premises herein leased. 6.8.7 Concessionaire assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or sex, be excluded from participating in any employment activity covered by this subpart. Concessionaire assured that it will require that its covered sub-organizations provide assurances to the Concessionaire that they similarly will undertake affirmative action programs and that they will require assurance from their sub-organizations, as required by 14 CFR 152, Subpart E, to the same effort. 6.8.8. City reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desire or view of Concessionaire and without interference or hindrance. 6.8.9 City reserve the right, but shall not be obligated to Concessionaire to maintain and keep in repair the landing area of the Airport and all publicly-owned ' facilities of the Airport, together with the right to direct and control all activities of the Concessionaire in this regard. 6.8.10 This Agreement shall be subordinate to the provisions and requirement of any existing or future agreement between the City and the United States, relative to the development, operation or maintenance of the airport. Fluid Images, Inc. to Concession Agreement Airport Terminal Advertising +� rJ 7.13 6.8.11 There is hereby reserved to the City, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the premises herein leased. This public right of flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for navigation or flight through the said airspace or landing at, taking off from or operation on the Airport. 6.8.12. Concessionaire agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations in the event future construction of a building is planned for the leased premises, or in the event of nay planned modification or alteration of any present or future building or structure situated on the leased premises. 6.8.13. Concessionaire, by accepting this Agreement, expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object, nor permit the growth of any tree on the land leased hereunder above the mean sea level elevation of 500 feet. In the event the aforesaid covenants are breached, City reserves the right to enter upon the Designated Premises hereunder and to remove the offending structure or object and cut the offending tree, all of which shall be at the expense of Concessionaire. 6.8.14. Concessionaire, by accepting this Agreement expressly agrees for itself, its successors and assigns that it will not make use of the premises in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, City reserves the right to enter upon the premises and cause the abatement of such interference at the expense of Concessionaire. 6.8.15. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of SECTION in 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349z). 6.8.16, This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire affecting the control, operation, regulation and taking over of said airport or the exclusive or non-exclusive use of the Airport by the United States during the time of war or national emergency. 6.8.17 Additional FAA Requirements. This Agreement shall be subject to additional requirements under 49 CFR part 20, 49 CFR, 18.36 and CFR part 29. Fluid Images, Inc. I I Concession Agreement Airport Terminal Advertising �(�� 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be onstituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Concessionaire covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Concessionaire's right to terminate this Agreement without cause pursuant to Section 7.6. 7.3 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A parry's consent to or approval of any act by the other party requiring the parry's consent or approval shall not be deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default,.to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Fluid Images, Inc. 12 Concession Agreement Airport Terminal Advertising 7.6 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Concessionaire, except that where termination is due to the fault of the Concessionaire, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Concessionaire reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Concessionaire may determine. Upon receipt of any notice of termination, Concessionaire shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Concessionaire has initiated termination, the Concessionaire shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer. In the event the Concessionaire has initiated termination, the Concessionaire shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.7 Termination for Default of Concessionaire. If termination is due to the failure of the Concessionaire to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Concessionaire shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Concessionaire for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.8 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. Fluid Images, Inc. 13 Concession Agreement Airport Terminal Advertising (�r�^ 8.0 MISCELLANEOUS PROVISIONS 8.1 Notice. Any notice, demand, request, document, consent, approval, or communication either 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 prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Concessionaire, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the ' time of mailing if mailed as provided in this Section. 8.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 83 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 8.4 Severability- In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 8.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they.are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. (SIGNATURES ON NEXT PAGE) Fluid Images, Inc. 14 Concession Agreement Airport Terminal Advertising tY)4 i IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above. ATTEST: CITY OF PALM SPRING a municipal corporation By: By: City Clerk City Manager APPROVED AS TO FORM By. City Attorney CONTRACTOR: Check one: —Individual —Partnership Corporation Corporations require two notarized signatures One from each of the following. A. Chairman of Board, President, or any Vice President AND B Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer By By Signature(notarized) Signature(notarized) Name: Name Title: Title. State of State of County of County of On before me, On before me, personally appeared personally appeared personally known to me(or proved to me on personally known to me(or proved to me on the basis of satisfactory evidence)to be the the basis of satisfactory evidence)to be the person(s)whose names)is/are subscribed person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to the within instrument and acknowledged to me that helshe/they executed the same to me that he/she/they executed the same • in his/her/their authorized capacity(ies),and in his/her/their authorized capacity(ies), and that by his/her/their signatures(s)on the that by his/her/their signatures(s)on the instrument the person(s), or entity upon instrument the person(s), or entity upon behalf of which the persons)acted, behalf of which the person(s)acted, executed the instrument. executed the instrument. WITNESS my hand and official seal WITNESS my hand and official seal. Notary Signature: Notary Signature Notary Seal Notary Seal Fluid Images, Inc. 15 Concession Agreement Airport Terminal Advertising EXHIBIT "A" SCOPE OF SERVICES 1, CONCESSION. 1.1 Grant and Acceptance of Concession. City grants to Concessionaire the non-exclusive right, subject to the reservations herein, to use certain space and facilities in and about the passenger terminal building at the Palm Springs International Airport Terminal ("Airport Terminal"), more particularly defined in Section 2.2 below, for the installation and maintenance of electronic advertising devices. Concessionaire hereby agrees to use, maintain, insure, repair and procure and place advertising in various locations throughout the Airport Terminal upon the terms and conditions more particularly set forth herein. City expressly reserves the right to authorize other third party concessionaires to install business signs and displays in the Airport Terminal for the purpose of advertising. 1.2 Defined Terms. The term 'advertisement" and "advertising displays" shall include electronic media devices mounted on a wall, ceiling or other approved surfaces. 2. ADVERTISING. 2.1 Procurement of Advertising. Concessionaire shall use its best efforts to procure advertising for display in all facilities subject to this Agreement and give copies of all such contracts to City for its records. Concessionaire shall frequently contact local businesses, marketing directors, advertising agencies and media buying companies to sell advertising space within the Airport Terminal. Concessionaire shall determine rates, terms and conditions under which advertising will be sold, provided, however, that such rates, terms and conditions shall not be less than fair market prices for the space as determined by the City in its reasonable discretion. 2.2 Advertising Display Area. Concessionaire may use the areas and other space within and about the Airport Terminal, as generally depicted on Exhibit "D" of this Agreement as approved and authorized by the Contract Officer, which space shall be used solely for the installation and maintenance by Concessionaire of advertising displays. Each advertising display area shall have at least the equipment listed in Exhibit "E". No advertisement shall be displayed except in the area designated for advertising which is approved by the Contract Officer. Concessionaire shall pay the entire cost of soliciting, procuring, installing, maintaining and exhibiting all advertising displays. Concessionaire, its subcontractors, agents and employees, shall have the right of ingress and egress to and from the Airport Terminal at all reasonable times in order to carry out the terms and conditions of this Agreement; provided, however, that this right shall not be exercised in such manner or to such extent as to impede or interfere with the operation of the Airport Terminal. Fluid Images, Inc. 16 Concession Agreement Airport Terminal Advertising OF" q 2.3 Maintenance. Concessionaire shall maintain, repair, clean and service all advertising displays in a "like new" condition at all times. All repair and maintenance work shall be performed at the sole cost and expense of Concessionaire. 2.4 Advertising Policies. Concessionaire shall obtain the City's approval before any advertising display shall be placed in any location allocated for such purpose. The number, type, size and content of all advertising displayed within the Airport Terminal is subject to the approval of the Contract Officer or his or her designee and shall not contain nudity, profanity, pornography, or any content which the City determines, in its sole discretion, is harmful to the public peace, safety, health and/or welfare. Concessionaire shall remove any objectionable advertising within twenty-four (24) hours of receiving verbal notice from City. Contract Officer may, upon ninety (90) days written notice to Concessionaire, change or delete the location of any spaces allocated for advertisements. 2.5 Unsold Advertising Space. If any advertising space in the Airport Terminal remains unsold or unused for a continuous period of twenty (20) days, Concessionaire shall so notify City and City may use such space for City sponsored activities, public service announcements or non-profit organizations through the date such advertising space is sold. Notwithstanding anything herein to the contrary, concessionaire shall reserve a minimum of ten percent (10%) of the total advertising space within the Airport Terminal for display of such public service related matters. 2.6 Ownership of Advertising Displays and Facilities. Any advertising displays or facilities installed by Concessionaire or covered by this Agreement shall remain the property of Concessionaire during the term of this Agreement. However, upon termination of this Agreement for any reason, with or without cause, City shall have the option of either requiring Concessionaire to (I) remove all its personal property from the Airport Terminal, including but not limited to, the advertising displays or (ii) transfer title to the advertising displays, at no additional cost to City; provided, however, that Concessionaire is not obligated to transfer any movable trade fixtures to City. This condition does not apply to the Equipment listed In item 1 in Exhibit "E". If City elects to acquire the advertising displays, Concessionaire shall execute a bill of sale in favor of City within ten (10) days of receipt of notice from City. If City elects to require Concessionaire to remove the advertising displays from the Airport Terminal, Concessionaire shall repair any damages which may be caused to the Airport Terminal by such removal, and such removal and repair shall be performed within a reasonable period of time but in no event shall removal be completed less than thirty (30) days after notice from the City. 2.7 Business License. Concessionaire shall maintain during the entire term of this Agreement a business license issued by the City. 2.8 Advertising Contracts. Concessionaire agrees that any advertising contracts with third parties running beyond the term of this Agreement shall be approved by the City, and such contract, if approved, shall be assignable to the City Fluid Images, Inc. 17 Concession Agreement Airport Terminal Advertising upon the expiration or termination of this Agreement. Nothing contained herein shall be construed as extending the term of this Agreement. 3. ADDITIONAL CONCESSIONAIRE SERVICES. 3.1 Special Events. The Concessionaire shall provide promotional support for up to two Airport special events each year. The promotional support video advertising, at a minimum, shall play ads at least 30 days per event. 32 Graphic -Support. The Concessionaire shall provide graphic design support for up to two graphic pieces (11 x 17 both sides) per year. 3.3 City of Palm Springs Promotions. The Concessionaire shall display advertising promoting the City of Palm Springs throughout the term of the contract. 3.4 City of Palm Springs Merchant Discount - The Concessionaire shall provide a 25% discount from the advertised rate schedule to City of Palm Springs Merchants throughout the term of the contract. 4. EXPANSION OF AIRPORT TERMINAL. 4.1 Installation of New Advertising Facilities. In the event that the City elects in its sole and absolute discretion to expand the Airport Terminal during the term of this Agreement, resulting in additional advertising space ("Expansion Area"), Concessionaire upon approval by the City agrees at its sole cost and expense to construct, install, market and operate advertising facilities in the Expansion Area in accordance with all the terms and conditions of this Agreement. 4.2 Approval and Completion of Expansion Facilities. Concessionaire shall submit its plans and specifications for the additional advertising facilities within the Expansion Area to City for its approval within thirty (30) days of receipt of written notice from City of plans to commence construction of the Expansion Area. The new advertising facilities within the Expansion Area shall be of a quality comparable to the facilities in the existing Airport Terminal. Concessionaire shall complete construction and installation of such additional advertising facilities within one hundred twenty (120) days of the last to occur of (i) receipt of written approval of the plans and specifications from City or (ii) completion of Expansion Area, Upon Concessionaire's completion of construction and installation of advertising facilities in the Expansion Area, Concessionaire shall deliver copies of all invoices for such construction costs to City. Fluid Images, Inc. 18 Concession Agreement Airport Terminal Advertising EXHIBIT "B" SPECIAL REQUIREMENTS NONE Fluid Images, Inc. 19 Concession Agreement Airport Terminal Advertising EXHIBIT "C" SCHEDULE OF COMPENSATION 1. Percentage Fee. Concessionaire shall pay to City a base line fee in an amount equal to thirty percent (30%) for the first 12 months, and then thirty-five percent (35%) for the remaining term of the contract of Concessionaire's gross revenues from the sale of advertising space in the Airport Terminal ("Percentage Fee"). 2. Adjusted Gross Revenue. If expansion of the Airport Terminal is completed during the term of this Agreement, the City's percentage fee applied to the gross revenues received from advertising facilities within the Expansion Area shall be the same as the percentage fee applied to the gross revenues from the existing Airport Terminal for the applicable calendar year. 3. Payment of Fees. Within fifteen (15) days following the end of each calendar month during the term of this Agreement, commencing with the end of the first calendar month following the commencement of this Agreement, Concessionaire shall furnish City with a statement in writing, certified by Concessionaire to be true and correct, showing the total gross revenue for the preceding calendar month and shall accompany each such statement with a payment to City equal to the applicable Percentage Fee. Without in any way limiting section 52 of this Agreement, Concessionaire shall keep at its principal place of business full, complete and proper books, records and accounts of its gross revenues, both for cash and on credit, at any time during the term of this Agreement. City and its agents and employees shall have the right at any and all times, during regular business hours, to examine and inspect all of such books and records of the Concessionaire and all contracts with advertising agencies. If a statement of gross revenue previously made to City shall be found to be inaccurate, then and in that event, there shall be an adjustment and one party shall pay the other on demand such sums as may be necessary to settle the accurate amount of such fee to be paid to City for the period or periods covered by such inaccurate statement or statements. In addition, Concessionaire shall provide City, within ninety (90) days of the end of Concessionaire's fiscal year, a certification from Concessionaire's chief financial officer specifying the total gross revenues received derived from advertising in the Airport Terminal. Fluid Images, Inc. 20 Concession Agreement Airport Terminal Advertising ����� EXHIBIT "D" AREAS OF PERFORMANCE (See Attached) Fluid Images, Inc. -21 - Concession Agreement ) 53 Airport Terminal Advertising o p GATE 9 ' GATE 7 CC',.. GATE 6 70 07 0o ou GATE 5 1 - GATE 4 Wall Mounted Displays I� Each display consist of three video panels located above the mural. Wall Mounted Display Display consists of three video panels located at the center terminal balcony floorjoist fl Q GATE 3 GATE 2 { L GATE 1 � O �`� 00 GVP / T%kO �PGGPG Ep�N �O Palm Springs International Airport Terminal Advertising o q C EXHIBIT D Fluid Images Designated Advertising Areas EXHIBIT "E" ADVERTISING AREAS LIST OF EQUIPMENT 1. Pro rieta Computer-based Video Media Playback Server. Concessionaire shall install a computer-based video playback system that is rack-mounted in its own customized casing on wheels. The server shall allow either HD or standard definition playback, remote control of play-list and screen function, remote media update and system status. The Concessionaire will be primarily responsible for the remote-controlled services. The Concessionaire shall provide internet access, connectivity, and service through a dedicated ethernet port for the server as well as the necessary I.T. support personnel, all at no charge to the City. The City shall provide an air-conditioned, centralized and secure location for the server with adequate power source(s) and cable run access. Being proprietary, this server shall be exempt from Exhibit A, Section 2.6 Ownership of Advertising Dis Ia s and Facilities, and will not be subject ' the conditions therein. 2. HD Plasma Displays. Concessionaire shall provide up to three displays each consisting of three 50" HD plasma screens, along with the necessary mounting hardware. City will provide access to areas where cables will need to be run to connect to the server, as well as any facility personnel to assist with access. 3. Audio Panel Speakers. Concessionaire shall provide one pair of stereo side-mount speakers for each display (up to a total of three displays). 4. Cabling and Wiring. Concessionaire shall provide all necessary power and video/audio/data cabling for the displays and for the server, internet service, and an ethernet connection. The City shall provide power sources and facility support personnel to ensure accessibility and compliance. Fluid Images, Inc. z2- Concession Agreement Airport Terminal Advertising