HomeMy WebLinkAbout2006-05-03 STAFF REPORTS 2P PALMS..
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Cat,Fp°RN`p CITY COUNCIL STAFF REPORT
DATE: May 3, 2006 Consent Calendar
:SUBJECT: PALM SPRINGS POWER AGREEMENT
FROM: David H. Ready, City Manager
BY: Department of Parks and Recreation
SUMMARY
The City Council approve a Facilities Use Agreement with the Palm Springs Power for
the nonexclusive use of Palm Springs Stadium for a term of three (3) years with two (2)
two-year extensions as allowed under the terms of the agreement. The City conducted
an RFP to solicit proposals for use of Palm Springs Stadium in 2004. Palm Springs
Power was the only responsive proposal received.
RECOMMENDATION
1. Adopt Minute Order No. authorizing the City Manager to execute an
agreement between the City of Palm Springs and Palm Springs Power Baseball
Team for a period of three (3) years with two (2) two-year extensions.
STAFF ANALYSIS
The Palm Springs Power Baseball Team (PSP) is entering its third year of play with the
Pacific Southwest League at Palm Springs Stadium. For the past two seasons, the PSP
has utilized Palm Springs Stadium on a daily rental basis under the rate structure of the
City's Comprehensive Fee Schedule. This arrangement was developed through the use
of the Parks and Recreation Department's Facility Use Agreement, which limits the term
of any agreement to a single year.
With the success of the PSP, team owner Andrew Starke approached staff about the
possibility of doing a multi-year agreement for use of the stadium. Mr. Starke presented
his proposal for a long-term agreement to the Parks and Recreation Commission at its
meeting on December 8, 2004. At the meeting, the commissioners voted unanimously
(6/0) for staff to negotiate this proposed agreement.
Item No. n . P .
May 3, 2006
PALM SPRINGS POWER AGREEMENT
Page Two.
AYES: Chair Evosevich, Vice Chair Bentinck, Commissioner Brannigan,
Commissioner Ciali, Commissioner Aylaian, Commissioner
McCormick
NOES: None
ABSENT: Commissioner Darrin, Commissioner LeClair, Commissioner
Saunders
Staff then proceeded under the direction of the commission to negotiate an appropriate
agreement with Mr. Starke and present that agreement to the City Council for its
consideration.
Under the terms of the proposed agreement, PSP will pay the City an amount equal to
the lowest regular daily rental rate for the stadium for each home game as determined
in the Comprehensive Fee Schedule. This amount is currently set at $350 per day.
ncreases to the daily rental rate for PSP will be subject to the City's modification of the
iowest rental rate within the Comprehensive Fee Schedule. For any home game where
paid gate attendance exceeds 1,000, PSP will also pay the City a portion of the
concession revenues. This amount will be set at 20% for admissions exceeding 1,000
attendees and 10% of all food and beverage concessions for the evening.
In addition to paying a daily rental fee and potentially sharing a percentage of
concession revenues, PSP will be responsible for paying the City's cost of operating the
outfield lighting. This cost is determined by the department by way of calculating the
Cogeneration Plant's operating cost per kilowatt hour of usage and then adding the
Southern California Edison meter demand charge for PSP's exclusive-use meter to the
monthly billing for the kilowatt hours used by PSP. This compensates the City for the
(highest cost associated with operating the stadium, which is the cost of lighting.
,Another condition of the agreement is for the joint participation between the City and
PSP in a stadium Capital Improvement Program. The agreement stipulates that the City
will contribute $20,000 each year from the department's annual Measure "Y" allocation
and PSP will contribute $10,000 from its operations, for an annual capital project fund
totaling $30,000. These funds will be used for a wide variety of needed stadium
improvements identified in the agreement. Over the seven-year term of the agreement,
this will allow the department to facilitate $210,000 worth of capital improvements to the
stadium, with PSP paying for $70,000 of those improvements.
Under the terms of the agreement, PSP will be allowed to produce some special events
other than baseball games in the stadium, with individual approvals by the City. The first
of these events will be a joint promotional effort by the City and PSP for the annual
Fourth of July celebration. On that day, PSP will play an exhibition game with the
Military All-Star Baseball Team prior to the fireworks show. The program provides for a
nominal entry fee for the ballgame and then, upon conclusion, the gates are opened for
the general public to view the fireworks show free of charge.
�Y)P,7
May 3, 2006
PALM SPRINGS POWER AGREEMENT
Page Three.
In 2004, the City conducted an RFP to solicit proposals for use of Palm Springs
Stadium. PSP was the only responsive proposal received.
FISCAL IMPACT: IFinance Director Review:
There is a significant positive financial impact to the City under this agreement. Annual
stadium rental fees will exceed $14,000 per year and there will be an additional $10,000
annual contribution by PSP towards the capital improvement program. Over the seven-
year tern of this agreement, the City will see in excess of$168,000 in total revenue and
capital investment attributable to this agreement with PSP.
'S t Mikesell, Director Tr utzlaff s tant City Manager
I arks and Recreation Ad strativ vices
David H. Ready, Cityana'ger
Attachment:
1. PSP Agreement
2. Minute Order
MINUTE ORDER NO.
AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT BETWEEN THE CITY OF PALM SPRINGS
AND PALM SPRINGS POWER BASEBALL TEAM FOR A
PERIOD OF THREE (3) YEARS WITH TWO (2) TWO-YEAR
EXTENSIONS.
I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that this
Minute Order, authorizing the City Manager to execute an agreement between the City
of Palm Springs and Palm Springs Power Baseball Team for a period of three (3) years
with two (2) two-year extensions, was adopted by the City Council of the City of Palm
Springs, California, in a meeting thereof held on the 3rd day of May, 2006.
James Thompson, City Clerk
AGREEMENT TO USE FACILITIES
This Agreement to Use Facilities ("Agreement") is made and entered into this _ day of
, 2006, by and between the CITY OF PALM SPRINGS ("City"), a California
charter city, and PALM SPRINGS POWER ("PSP"), a California corporation.
RECITALS
A. City and PSP are mutually interested in and concerned with providing quality recreational
activities for the citizens of Palm Springs.
B. it is recognized that through a cooperative agreement between the City and PSP for the
use of the Palm Springs Stadium("Stadium"), the community and the residents of Palm Springs will
enjoy additional recreational opportunities.
NOW, THEREFORE, the City and PSP do hereby mutually agree as follows:
1A. INTENT OF AGREEMENT
1A.1 It is the intent of this Agreement to describe the responsibilities of the City and
PSP in their cooperative effort to effectively promote and provide competitive
collegiate-level baseball entertainment for residents and visiting youth and adults
at the Stadium.
1A.2 It is the intent of this Agreement to solidify a supportive and working relationship
between PSP and the City.
1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and
direct their efforts toward the development of quality baseball programs at the
Stadium.
I GRANT OF NON-EXCLUSIVE USE
113.1 The City grants PSP the nonexclusive use of the following portions of the Stadium
located at 1901 East Baristo Road, Palm Springs, California, subject to the terms
' and conditions more particularly set forth in this Agreement.
1 B.2 PSP shall have the exclusive use of the offices located at the Stadium during the
term of this Agreement, except the City may grant third parties utilizing the
Stadium the right to use the box office on days that PSP is not hosting home
games or a tournament.
113.3 The parties agree that PSP may identify the Stadium as its"home"stadium for all
baseball games held for or on behalf of PSP during the term of this Agreement.
1 B.4 Subject only to the City's Fourth of July Fireworks event, PSP shall have the
exclusive use of the entire Stadium for its approximately forty(40)home games of
the collegiate all-star baseball team owned by PSP, known as the Palm Springs
Power ("Team"), during the baseball season for the Pacific Southwest League
("Season"), plus all tournaments hosted by the Team, commencing at 6:00 a.m.
on the date of such home game ortournament and ending three (3) hours after
the completion of each home game or, for a tournament, last game of the day.
PSP shall notify the City as soon as practicable of the dates of the home games
for the Team and any tournaments to be hosted by the Team, but not later than
April 30 of each year the agreement is in effect.
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1 B.5 For the period commencing with the first home game and ending with the last
home game of the Team or tournament to be hosted by the Team, whichever is
later, PSP shall have the exclusive right to use the locker rooms located at the
Stadium.
1 B.6 During the term of this Agreement, PSP shall remain a member in good standing
of the Pacific Southwest League.
1B.7 Within five (5) days of the last home game of the Season (including any
tournament hosted by the Team), PSP shall vacate and surrender all areas of the
Stadium, except for the locker rooms, offices and concession areas. PSP's
schedule shall take precedence in all scheduling of the Stadium. Nevertheless,
the City shall have the right to grant third parties the right to use all or any part of
the Stadium at such times thatwill not conflict with the terms of this Agreement,
and PSP agrees to cooperate and coordinate with Contract Officer for use of the
Stadium by community and youth organizations during the baseball season.
Contract Officer shall give PSP notice of other events to be conducted at the
Stadium within seventy-two (72) hours of booking such an event.
2. AREAS OF RESPONSIBILITY
2.1 Use
2.1.1 PSP shall exercise this Agreement solely for the management of the
Team, the playing of home games by the Team, the hosting of
tournaments by the Team, and the sale of concessions during home
games. On the date of each home game or tournament game, PSP shall
be responsible for turning on and off the field lights prior to and after the
game. In addition, PSP shall be responsible for procuring parking
attendants and adequate security personnel, as reasonably deemed
necessary by the City, for each game. Similarly, each game, PSP shall
be responsible to ensure that all trash cans at the Stadium are emptied
and that all litter throughout the Stadium has been collected and
properly disposed of.
2.1.2 PSP shall not use or permit to be used the Stadium or any part thereof
for any purpose or purposes other than the express purpose or
purposes forwhich the Stadium is hereby rented to PSP. In addition,this
Agreement does not permit PSP to use the practice field. However, PSP
may apply to the Contract Officer to use the Stadium or the practice field
for other baseball-related events through the City's standard Facility Use
Application process. PSP shall not sell or permit to be kept, used,
displayed, or sold in or about the Stadium (a) any article that may be
prohibited by standard forms of fire insurance policies or (b) any
alcoholic beverages unless expressly approved in advance by the
Contract Officer.
2.1.3 PSP shall have complete responsibility for the control and supervision of
its staff members and invitees with respect to purchases from ,the
concession stand, use of the Stadium, and use of the concession stand
and concession stand equipment.
2.1.4 PSP shall be responsible forthe control and safety of its staff, members
and guests while PSP, its staff, members and guests use the Stadium.
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2.1.5 PSP shall not engage in any activity on or about the Stadium that
violates any environmental law and shall promptly, at PSP's sole cost
and expense, take all investigatory and/or remedial action required or
ordered by any governmental agency or environmental law for cleanup
and removal of any contamination involving any hazardous material
created or caused directly or indirectly by PSP.The term"environmental
law" shall mean any federal, state or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environmental
conditions on, under or about the Stadium, as such laws are amended,
and the regulations and administrative codes applicable thereto. The
term "hazardous material" includes, without limitation, any material or
substance that is (i) defined or listed as a "hazardous waste,"
"hazardous substance" or considered a waste, condition of pollution or
nuisance under the environmental laws; (ii) petroleum or petroleum
products or fractions thereof; (iii) asbestos; and/or (iv) substances
known by the State of California to cause cancer and/or reproductive
toxicity. PSP shall provide prompt written notice to the Contract Officer
of the existence of hazardous substances at the Stadium and any
notices of violation of environmental laws received by PSP.
2.2 Concessions and Ticket Sales
2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty,
program, refreshment, and concession facilities within the Stadium
during home games and tournaments hosted by the Team. PSP shall
serve and provide for the sale of such items of food, drink, and goods as
are normally served by concessionaires in baseball stadiums, including,
without limitation, souvenirs, programs, seat cushions, baseball caps
and batting helmets.The City reserves the right to retain concessions for
City-sponsored events or any third party events.
2.2.2 All rates charged for admission to the Stadium for home games and
tournament games and for the sale of concessions shall be uniform,
except that PSP shall provide discounted admission prices for children
under twelve (12), students and adults over sixty-five (65)years of age,
and subject to the prior approval of the Contract Officer,which approval
shall not be unreasonably withheld. The standard used by the Contract
Officer to approve or disapprove rates and prices shall be the prevailing
market rate for such items and services. The Contract Officer shall have
access to and the right to inspect the schedule of prices and rates
charged for admission to the Stadium and concessions and, in the event
that after PSP has been advised and given a reasonable opportunity to
confer with the Contract Officer and justify the prices then in effect, if the
Contract Officer determines that any price or prices are unreasonable or
inappropriate, the same shall be modified as directed by the Contract
Officer. PSP shall display all prices at the point of sale for all admission
and concessions conspicuously on signs approved by the Contract
Officer.
All rates for the sale of tickets and concession items are to be submitted
to the Contract Officer for approval prior to any promotion or publication
of said rates.
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2.3. Advertising
2.3.1 PSP shall have the exclusive right to place advertising signs on the
outfield fence of the Stadium at locations approved in advance by the
Contract Officer. All revenue received from such advertising shall be
paid to PSP. Outfield advertising shall remain in place from March 1
through December 31 of each year the agreement is in effect. Any
damage caused by PSP through the installation or removal of
advertising signs shall be immediately repaired by PSP at no cost to the
City. Such advertising shall be subject to the approval of the Contract
Officer, which approval shall not be unreasonably withheld. The City
reserves the right to temporarily cover advertising signs during special
events and/or rentals of the Stadium by third parties. PSP shall promote
the Stadium and its Team in consultation with the City's Department of
Tourism. The City shall be named in all advertising. For promotional
purposes, PSP shall include reference to the City in all paid media
(advertising), publications and signs. The City shall be identified on a
credit line prominently presented on the PSP's website page. There
shall be a hyperlink from the PSP's website to the City's website at
www.ci.palm-springs.ca.us. The parties agree that said link may be
"framed"whereby material or pages from the linked website appear in a
frame on the site which creates the link.The parties expressly recognize
their individual obligations and responsibilities for the content, quality,
accuracy or completeness of materials contained on their respective
websites and agree to hold each other harmless from any special,
indirect, incidental or consequential damages that may arise from the
use of or the inability to use the respective sites and/or the materials
contained on either site whether the materials contained on the site are
provided by the City or PSP.
2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising.
An example of advertising includes, but is not limited to, receiving space
to place one (1) full-page four-color advertisement on the inside of the
PSP's official program for marketing and promotion purposes.
2.4 Repairs and Maintenance
2.4.1 PSP shall, at its sole cost and expense and subject to the City's
obligations more particularly set forth below, keep and maintain the
Stadium and the adjacent parking facilities, sidewalks and landscaping
in a good, neat, clean and orderly condition and state of repair,
including, but not limited to, cleaning the Stadium and removing all
debris and litter from the Stadium after each home game and
tournament game. By entering into the Stadium, PSP shall be deemed
to have accepted the Stadium as being in a good, neat, clean and
orderly condition. PSP agrees that upon the surrender of any portion of
the Stadium to the City, the Stadium shall be surrendered in the same
condition as when received and in a good, clean and sanitary condition,
reasonable use and wear thereof and damage by fire, act of God or by
the elements excepted.
2.4.2 The City hereby agrees to mow,water, seed and otherwise maintain the
playing field of the Stadium in a condition satisfactory to conduct
independent league baseball games, provided that PSP shall be
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responsible for preparation of the infield for all home games and
tournament games.The City shall also maintain the playing field lights in
a good condition and repair, including, but not limited to, replacing bulbs
and fixtures as needed, on a timely basis, to be operable at the time of
all home games and tournament games. The City shall be responsible
for cleaning the Stadium to a good, neat, clean and orderly condition
after third-party events and prior to the start of each baseball season no
later than Memorial Day of each year.
2.4.3 Before June 1, 2007, City will paint the exterior of the Stadium subject to
architectural approval by the City's Planning Commission specific to
paint color.
2.5 Utilities
2.5.1 The City shall provide and maintain all utilities forthe Stadium, including
water, gas, and electricity except as noted below in Section 2.5.2. PSP
hereby waives any and all claims it may now or in the future have
against the City for any losses or damages sustained by PSP by reason
of any defect, deficiency, or impairment in the provision of utilities to the
Stadium.
2.5.2 PSP will pay the full cost of the utilities needed for outfield lighting in the
amount as the City may establish from time to time and charge the City's
Parks and Recreation Department. The outfield lighting will be metered
and billed separately by the City to PSP. PSP will have exclusive control
of one (1) of three (3) key-operated electrical meters in the Stadium
which will provide full control over the use of the outfield lighting.
PSP will also pay an equal to one-third of the Southern California Edison
Demand Charge for electrical service to the Stadium each month in
which the outfield lighting is used or there is a registered use on PSP's
assigned meter.
Payment will be due the City within fifteen (15)days of the date billed. If
payment is not received within ten (10) days of its due date, a late
charge will be applied pursuant to Section 3.6 of this Agreement.
2.6 Alterations and Fixtures
PSP shall not make or suffer to be made any alterations to the Stadium, or any
part thereof, or change the appearance of the Stadium without the prior written
consent of the Contract Officer, and any alterations to the Stadium, except for
movable furniture and trade fixtures, shall become at once a part of the realty and
shall, at the expiration or earlier termination of this Agreement, belong to the City.
Any such alteration shall be in conformance with the requirements of all
municipal, state,federal and other governmental authorities and in conformance
with the reasonable rules and regulations of the City. The Contract Officer may
require that any such alterations be removed prior to the expiration of the term
hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and
expense and accomplished in a good and workmanlike manner. Any damage
caused by such removal shall be repaired at PSP's sole cost and expense.so that
the Stadium can be surrendered in a good, clean and sanitary condition as
required by Section 2.4 above. In installing and removing any such alterations or
fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and
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the property on which the Stadium is situated free from any liens arising out of
any work performed, material furnished or obligation incurred or alleged to have
been incurred by PSP.
2.7 Capital Improvements
During the original three-yearterm of this Agreement and any extension thereof,
PSP agrees to pay the City the sum of at least Ten Thousand Dollars ($10,000)
per year, due on or before October 1 of each year, and the City agrees to
contribute the sum of Twenty Thousand Dollars($20,000)peryearfrom its annual
Measure Y allocation, all sums being used to make specific capital improvements
("Projects") at the Stadium as identified and agreed to pursuant to this Section
2.7. In the event that Measure Y funds are not available to the City during any
fiscal year or the City Council of the City determines in its sole discretion that
there are insufficient Measure Yfunds available for Stadium improvements during
any fiscal year, the City shall not be obligated to make any contribution toward
Stadium improvements pursuant to this Section 2.7 for each such fiscal year.
PSP and City agree that on or before December 31 of each year during the term
of this Agreement and any extension thereof, the parties will meet to confer and
determine which Projects shall be done for that current fiscal year.
2.8 Damage and Destruction
In the event of(a) a partial or total destruction of the Stadium that requires repairs
to the Stadium or(b)the Stadium being declared unsafe or unfit for occupancy by
any authorized public authority for any reason other than PSP's act, use or
occupation, which declaration requires repairs throughout the Stadium, the City
shall have the right to eitherterminate this Agreement orrepairthe Stadium. If the
City elects to make said repairs, and provided the City uses due diligence in
making said repairs, this Agreement shall continue in full force and effect. If the
City elects to terminate this Agreement, all rentals shall be prorated between the
City and PSP as of the date of such destruction.
2.9 Compliance with Law
PSP shall use the Stadium and conduct its operations thereon 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.
210 Licenses, Permits, Fees and Assessments
PSP shall obtain at its sole cost and expense such licenses, permits and
approvals as may be required by law for the use of the Stadium and conduct of its
operations thereon, and shall indemnify, defend and hold harmless City against
any such fees, assessments, taxes, penalties or interest levied, assessed or
imposed against City hereunder.
2.11 Further Responsibilities of Parties
The parties agree to use reasonable care and diligence to perform. their
respective obligations under this Agreement. Both parties agree to act in good
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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 services of
the other.
2.12 Prohibited Activities.
2,12.1 The City reserves the right to prohibit the sale of any item at the
concession stand. Such determination shall be made by the Contract
Officer.
2.12.2 Vending machines are prohibited.
2.12.3 The sale of tobacco, gum, and all other items that create safety or litter
problems, as determined by the Contract Officer, is prohibited.
2.12.4 The sale of any item which is contained in glass or a metal container is
prohibited.
2.12.5 All other activities when specified by the Contract Officer in writing and
delivered to PSP are prohibited.
2.13 Security and Access
Contract Officer and the lawful representative of any other public agency, as
necessary, shall have the right to enter any portion of the Stadium for the
purposes of verifying PSP's compliance with the terms of this Agreement and all
applicable laws. Such entry shall be made upon oral notice to PSP, except that in
cases of emergency, no notice shall be required.
3. COMPENSATION
In consideration for this Agreement, PSP agrees to pay to the City the following:
3.1 Fixed Rental
PSP shall pay to the City an amount equal to Three Hundred Fifty Dollars ($350),
or such amount as the Council may adopt by resolution within the Comprehensive
Fee Schedule, for each home game and day of tournament play ("Rent"). Rent
shall be paid to the City on or before the first of each month, in advance.
3.2 Security Deposit
PSP shall provide City with a security deposit in the sum of One Thousand
Dollars ($1,000) due on or before May 1, 2006. City may draw upon the security
deposit to correct any default or breach of this Agreement by PSP, its successors
or assigns, or for payment of expenses incurred by City as a result of the failure of
PSP, its successors or assigns, to faithfully perform all terms, covenants, and
conditions of this Agreement, including, but not limited to, nonpayment of Rent
pursuant to Section 3.1. In the event City withdraws any or all of the security
deposit during the term of this Agreement, PSP shall, within ten (10) days of any
withdrawal by City, replenish the security deposit to maintain it at amounts as
herein required throughout the lease term. Failure to do so shall be deemed a
default and shall be grounds for immediate termination of this Agreement.
Nothing contained in this Section 3.2 shall in any way diminish or be construed as
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waiving any of the City's other remedies as provided in this Agreement or by law
or in equity.
The security deposit shall be returned by City to PSP at the end of the term of this
Agreement, as defined in Section 4.2, provided PSP has fully and faithfully
performed each and everyterm, covenant, and condition of this Agreement.The
authorized refund of any security deposit by City, after deduction of all amounts
due City under this Agreement, shall be made after sixty(60) days have elapsed
following the effective date of said termination.
3.3 Percentage Gate
Should PSP's paid gate attendance exceed one thousand (1,000) people forany
home game or day of tournament play, PSP shall be required to pay to the City,
on a monthly basis commencing on the fifteenth (15th)day of the month following
the month in which the first home game is played, on or before the fifteenth(15th)
day of each month, an amount equal to twenty percent(20%)of the amount of the
total paid gate receipts for attendance in excess of one thousand (1,000)for that
day.
3.4 Percentage of Concessions
Should PSP's paid ticket sales exceed one thousand (1,000) people for any
home game or day of tournament play, PSP shall pay to the City for each
occurrence, on a monthly basis commencing on the fifteenth (15th) day of the
month following the month in which the first home game is played, on or before
the fifteenth (15th)day of each month, an amount equal to fifteen percent(10%)of
the amount of gross sales for food and beverage concessions made in, upon or
from the Stadium for the preceding month for all home games and tournament
games and an amount equal to eighteen percent (18%) of the amount of gross
sales for food and beverage concessions made in, upon or from the Stadium
during the preceding month for all Stadium events other than home games or
tournament games hosted by the Team.
The term "gross sales," as used herein, means the total gross receipts for food
and beverage concessions sold and fees charged by PSP for food and beverage
concessions, whether for cash or credit or otherwise, and including the valuable
consideration otherthan money received for any of the foregoing,without reserve
or deduction for inability or failure to collect, including, but not limited to, sales and
leases. Gross sales shall include the full retail price of any merchandise delivered
or redeemed for coupons and all deposits not refunded to purchasers. Gross
sales shall not include sales taxes, consumer excise taxes, gross receipt taxes
and other similar taxes now or hereafter imposed upon the sale of merchandise
or services, but only if collected separately from the selling price and collected
directly from customers.
PSP shall keep at the Stadium full, complete, and proper books, records and
accounts of its daily gross sales and gate receipts, both for cash and on credit, at
all times during the term of this Agreement. The Contract Officer shall have the
right at any and all times during regular business hours to examine and inspect all
books and records of PSP, including any sales tax reports pertaining to the
business of PSP conducted in, upon or from the Stadium for the purpose of
investigating and verifying the accuracy of any statement of gross sales and gate
receipts and to cause an audit of the business of PSP to be made by an
accountant of the City's selection. If the statement of gross sales orthe statement
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of gate receipts previously made to the 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 in full the accurate amount
of such percentage rental or gate receipts that should have been paid to the City
for the period or periods covered by such inaccurate statement or statements. If
said audit shall disclose an inaccuracy of greater than three percent (3%) with
respect to the amount of gross sales or gate receipts reported by PSP, then PSP
shall immediately pay to the City the cost of such audit; otherwise, the cost of
such audit shall be paid by the City.
3.5 Real and Personal Property Taxes
In addition to all other payments herein reserved, PSP shall pay directly to the
taxing authority any possessory interest taxes imposed upon PSP for the use of
the Stadium and all taxes assessed against and levied upon any fixtures,
furnishings, equipment and all other personal property of PSP located in the
Stadium.
3.6 Late Payment
PSP hereby acknowledges that late payment by PSP to the City of amounts due
hereunder will cause the City to incur costs not contemplated by this Agreement,
the exact amount of which is extremely difficult to ascertain. Such costs include,
but are not limited to, processing and accounting charges. Accordingly, any
payment of any sums to be paid by PSP not paid within ten (10) days of its due
date shall be subject to a five percent (5%) late charge. PSP and the City agree
that this late charge represents a reasonable estimate of such costs and
expenses and is fair compensation to the City for its loss suffered by such late
payment by PSP.
3.7 Interest
Any sum to be paid pursuant to the terms of this Agreement not paid when due
shall bear interest from and after the due date until paid at a rate equal to three
percent (3%) over the reference rate being charged by Bank of America, N.A.
from time to time during such period so long as the rate does not exceed the
maximum non-usurious rate permitted by law, in which case interest shall be the
maximum non-usurious rate allowed by law at the time the sum became due.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence
Time is of the essence in the performance of this Agreement.
4.2 Term
Unless earlier terminated in accordance with Section 8.6 of this Agreement, the
term of this Agreement shall be for a period of three (3) years commencing on
May 1, 2006 and terminating on December31, 2009.At the discretion of the City
Manager, this Agreement may be extended for two (2) two-year terms upon the
expiration of the original term.
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5. COORDINATION OF WORK
5.1 Representative of PSP
The following principals of PSP are hereby designated as being the principals and
representatives of PSP, authorized to act on its behalf with respect to this
Agreement and make all decisions in connection therewith:
Andrew Starke
1832 North Mira Loma Way
Palm Springs, CA 92262
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. For purposes of this Agreement, the foregoing
principals may not be replaced without the express written approval of City.
5.2 Contract Officer
The Contract Officer shall be the City's Department of Parks and Recreation
Director or the designee or designees of the Director. It shall be the PSP's
responsibility to assure that the Contract Officer is kept informed of the progress
of the performance of the services and the PSP shall refer any decisions that
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.
5.3 Subcontracting or Assignment Prohibited
The experience, knowledge, capability and reputation of PSP, its principals and
employees were a substantial inducement for City to enter into this Agreement.
Therefore, neither this Agreement nor any interest herein may be transferred,
assigned, conveyed, sublet, hypothecated or otherwise transferred voluntarily or
by operation of law, whether for the benefit of creditors or otherwise, without the
prior written approval of Contract Officer. However, PSP may subcontract or
assign the concession sales to a licensed vendor upon prior written approval by
the Contract Officer. Transfers restricted hereunder shall include the transfer to
any person or group of persons acting in concert of more than fifty percent(50%)
of the present ownership and/or control of PSP, 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 PSP of any liability hereunder without the express consent of
Contract Officer.
5.4 Independent Contractor
Neither City nor any of its employees shall have any control over the manner,
mode or means by which PSP, its agents or employees perform the services
required herein, except as otherwise set forth herein. City shall have no voice in
the selection, discharge, supervision or control of PSP's employees, servants,
representatives or agents, or in fixing their number, compensation or hours of
service. PSP shall perform all services required herein as an independent
contractor of City and shall rernain at all times as to City a wholly independent
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contractor with only such obligations as are consistent with that role. PSP 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 PSP in its business or
otherwise or a joint venturer or a member of any joint enterprise with PSP
6. INSURANCE, INDEMNIFICATION AND BONDS
6.1 Insurance
PSP shall procure and maintain, at its sole costs and expense, in a form and
content satisfactory to Contract Officer, during the entire term of this Agreement,
including any extension thereof, the following policies of insurance:
a. Comprehensive General Liability Insurance. A policy of comprehensive
general liability insurance written on a per-occurrence basis in an amount
not less than either (i) a combined single limit of One Million Dollars
($1,000,000)for bodily injury,death and property damage or(ii) bodily injury
limits of Five Hundred Thousand Dollars ($500,000) per person, One
Million Dollars ($1,000,000) per occurrence and One Million Dollars
($1,000,000) products and completed operations and property damage
limits of Five Hundred Thousand Dollars ($500,000) per occurrence and
Five Hundred Thousand Dollars ($500,000) in the aggregate.
b. Worker's Compensation Insurance. A policy of worker's compensation
insurance in such amount as will fully comply with the laws of the State of
California and that shall indemnify, insure and provide legal defense for
both PSP and the City against any loss, claim or damage arising from any
injuries or occupational diseases occurring to any worker employed by or
any persons retained by PSP in the course of carrying out the work or
services contemplated in this Agreement.
c. Automotive Insurance. A policy of comprehensive automobile liability
insurance written on a per-occurrence basis in an amount not less than
either(i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars
($250,000)per person and Five Hundred Thousand Dollars ($500,000) per
occurrence and property damage liability limits of One Hundred Thousand
Dollars ($100,000) per occurrence and Two Hundred Fifty Thousand
Dollars ($250,000) in the aggregate or(ii) combined single limit liability of
Five Hundred Thousand Dollars ($500,000). Said policy shall include
coverage for owned, non-owned, leased and hired cars.
All of the above policies of insurance shall be primary insurance and shall
name the City, its officers, employees and agents as additional insureds.
The insurer shall waive all rights of subrogation and contribution it may
have against City, its officers, employees and agents and their respective
insurers. All of said policies of insurance shall provide that said insurance
may not be amended or canceled without providing thirty (30) days' prior
written notice by registered mail to the City. In the event any of said policies
of insurance are canceled, PSP shall, priorto the cancellation date;submit
new evidence of insurance in conformance with this Section 6.1, to the
Contract Officer. No work or services under this Agreement shall
commence until PSP has provided City with certificates of insurance or
appropriate insurance binders evidencing the above insurance coverage
and said certificates of insurance or binders are approved by City.
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PSP agrees that the provisions of this Section 6.1 shall not be construed as
limiting in anyway the extent to which PSP maybe held responsible for the
payment of damages to any persons or property resulting from PSP's
activities or the activities of any person or persons for which PSP is
otherwise responsible.
In the event PSP subcontracts any portion of the work in compliance with
Section 5.3 of this Agreement, the contract between PSP and such
subcontractor shall require the subcontractorto maintain the same policies
of insurance that PSP is required to maintain pursuant to this Section 6.1.
6.2 Indemnification
PSP, as a material part of the consideration to be rendered to the City under this
Agreement, hereby waives claims against the City for damage to equipment or
other personal property, trade fixtures, improvements, goods, wares, inventory
and merchandise in, upon or about the Stadium and for injuries to persons in or
about the Stadium from any cause arising at any time. PSP agrees to indemnify
the City, its officers, agents and employees against and shall 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 (herein "claims or liabilities") that may be asserted or claimed by any
persons, firm or entity arising out of or in connection with the negligent
performance of the work, operations or activities of PSP, its agents, employees,
subcontractors or invitees provided for herein, or arising from the negligent acts
or omissions of PSP hereunder, or arising from PSP's negligent performance of
orfailure 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. PSP shall defend any action or actions filed in connection with any of said
claims or liabilities and shall pay all costs and expenses, including legal
costs and attorneys' fees incurred in connection therewith;
b. PSP shall promptly pay anyjudgment rendered against the City, its officers,
agents or employees for any claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such
work, operations or activities of PSP hereunder; and PSP 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 PSP for such
damages or other claims arising out of or in connection with the negligent
performance of or failure to perform the work, operation or activities of PSP
hereunder, PSP agrees to pay City, its officers, agents or employees and or
employees in such action or proceeding, including, but not limited to, legal
costs and attorneys' fees.
6.3 Sufficiency of Insurer or Surety
The insurance 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
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recent edition of Best Rating Guide The Key Rating Guide or in the Federal
Register, and only if they are of a financial category Class VI or better, unless
such requirements are waived by the Risk Manager of the City('Risk Manager")
due to unique circumstances. In the event the Risk Manager determines that the
work or services to be performed under this Agreement creates an increased or
decreased risk of loss to the City, PSP agrees that the minimum limits of the
insurance policies and the performance bond required by this Section 6 may be
changed accordingly upon receipt of written notice from the Risk Manager,
provided that PSP shall have the right to appeal a determination of increased
coverage by the Risk Manager to the City Council of City within ten (10) days of
receipt of notice from the Risk Manager.
7. RECORDS AND REPORTS
7.1 Reports
PSP shall periodically prepare and submit to the Contract Officer such reports
concerning the performance of the services required by this Agreement as the
Contract Officer shall require.
7.2 Records
PSP shall keep, and require subcontractors to keep, such books and records as
shall be necessary to perform the services required by this Agreement and enable
the Contract Officer to evaluate the performance of such services. The Contract
Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy, audit
and make records and transcripts from such records. Such records shall be
maintained for a period of three (3) years following completion of the services
hereunder, and the City shall have access to such records in the event any audit
is required.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law
This Agreement shall be construed and interpreted both as to validity and
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 instituted in the Superior Court of the County of
Riverside, State of California, or any other appropriate court in such county, and
PSP covenants and agrees to submit to the personal jurisdiction of such court in
the event of such action.
8.2 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 therefore.
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
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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.
8.3 Waiver
No delay or omission in the exercise of any right or remedy by a non-defaulting
party on any default shall impair such right or remedy or be construed as a
waiver.A party's consent to or approval of any act by the other party requiring the
party's consent or approval shall not be deemed to waive or render unnecessary
the other party'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.
8.4 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.
8.5 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.
8.6 Termination for Default of PSP
If PSP fails to cure a default within the time periods set forth in Section 8.2 above,
then the City, in addition to any other rights or remedies it may have in law or
equity, shall have the immediate rightto remove all persons and propertyfrom the
Stadium and such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of PSP, all without services of notice
or resort to legal process without being deemed guilty of trespass, or becoming
liable for any loss or damage which may be occasioned thereby and may
unilaterally terminate this Agreement by written notice effective three(3)calendar
days after said notice.
8.7 Attorneys' Fees
If either party to this Agreement is required to initiate or defend or made a partyto
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 that
may be granted, whether legal or equitable, shall be entitled to reasonable
attorneys'fees. Attorneys'fees shall include attorneys'fees on any appeal, and,
in addition, a party entitled to attorneys' 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 that 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.
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c_,
9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1 Non-Liability of City Officers and Employees
No officer or employee of the City shall be personally liable to PSP, or any
successor in interest, in the event of any default or breach by the City or for any
amount that may become due to PSP or to its successor, or for breach of any
obligation of the terms of this Agreement.
9.2 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 that affects 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. PSP
warrants that it has not paid or given and shall not pay or give any third party any
money or other consideration for obtaining this Agreement.
9.3 Covenant Against Discrimination
PSP covenants that, by and for itself, its heirs, executors, assigns and all persons
claiming under or through them, 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. PSP shall take affirmative action to ensure 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.
10. MISCELLANEOUS PROVISIONS
10.1 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
92263-2743, and, in the case of PSP, to the person at the address designated in
Section 5.1 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.
10.2 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 that
might otherwise apply.
10.3 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
15 �('-)"I "-)
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 anytime by the mutual consent of the parties by
an instrument in writing.
10.4 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 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 this invalidity deprives either party
of the basic benefit of their bargain or renders this Agreement meaningless.
10.5 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 provision 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.
10.6 Release
PSP hereby releases and forever discharges City from and against any and all
claims, demands, actions and causes of action whatsoeverwhich PSP may have
or may hereafter have specifically arising in any way out of the exercise by PSP of
the rights afforded by this Agreement. This is a complete and final release and
shall be binding upon PSPBF and covers claims arising out of or connected with
PSP's presence and/or the use of all or any portion of the Stadium by PSP.
10.7 Assignment
PSP may not assign this Agreement, or any right under it, whether voluntarily or
by operation by law, to an affiliate or any third party without the prior written
consent of City, which consent may be withheld in City's sole and absolute
discretion. As a condition precedent to any assignment, the assignee must
execute an assumption agreement assuming all of the obligations under this
Agreement. PSP shall not be relieved of its obligations under this Agreement in
the event of an assignment.
(SIGNATURES CONTINUED TO NEXT PAGE)
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EXHIBIT "A"
TO AGREEMENT TO USE FACILITIES
BY AND BETWEEN CITY OF PALM SPRINGS
AND
PALM SPRINGS POWER
CAPITAL IMPROVEMENTS
Projects may include, but are not limited to, repair and/or facility improvements to one or more of the
following:
Painting of building interior and/or exterior;
Stadium office remodeling;
Concession upgrades;
Restroom and/or locker room upgrades;
Batting cage upgrades;
Press box, public address system, and misting system upgrades;
Dugout upgrades;
Scoreboard repair and/or replacement.
If any improvement that has been mutually agreed up by both parties is solely paid for by either PSP
or the City, the cost of such improvement will be credited toward that party's annual obligation.
EXHIBIT "A"
Page 1 of 1
i
EXHIBIT"B"
TO AGREEMENT TO USE FACILITIES
BY AND BETWEEN CITY OF PALM SPRINGS
AND
PALM SPRINGS POWER
City agrees to waive Section 3.3 Percentage of Gate, and Section 3.4 Percentage of Concessions,
within the agreement for any three (3) play dates each year of the agreement.As an example, one
of the following three dates would qualify.
1. Opening Day
2. Day After Opening Day
3. Fourth of July
EXHIBIT "B"
Page 1 of 1
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date
first written above.
"CITY"
CITY OF PALM SPRINGS
By: City Manager
Date:
By hector of Parks and Recreation /
Date:
Attest:
City Clerk
Approve, q ,A form:
City AttorLiey
"PSPBC"
PALM SPRINGS POWER BASEBALL CLUB
By: Nief ExecutiTe Officer
Date: 0
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