HomeMy WebLinkAbout10/19/2011 - STAFF REPORTS - 2.M. Q Q ALM S,b
A.
�y
U W
v a
♦ x
• aFo„outW`o4 +
<,FORN�P CITY COUNCIL STAFF REPORT
DATE: October 19, 2011 Consent Calendar
SUBJECT: APPROVAL OF AGREEMENT WITH ACTION PARK ALLIANCE FOR
OPERATION AND MANAGEMENT OF THE PALM SPRINGS SKATE
PARK
FROM: David H. Ready, City Manager
BY: Parks and Recreation
SUMMARY
At the direction of the City Council, staff has been working with Action Park Alliance
(APA) on an agreement to operate and manage the Palm Springs Skate Park. This
new management and operating program will take the skate park to an entirely new
level of operation offering programs such as camps, clinics, skate contests and special
events for local residents and tourists. Staff has secured a modular structure to be
placed at the site for APA to effectively operate and manage the facility. Staff is
recommending that City Council approve a five (5) year agreement with Action Park
Alliances (APA) to operate and manage the Palm Springs Skate Park. The City shall
pay APA a management fee in the not to exceed amount of $160,000 per year in four
equal quarterly payments of $40,000. Anticipated date agreement would begin is
January, 2012.
RECOMMENDATION:
1. That the City Council approve a five (5) year agreement.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
When the Skate Park opened in 2003 city staff collected entrance fees and monitored
skate boarders entrance and exits. In addition, they performed minor maintenance
in the park i.e. trash, graffiti, etc; however, active programming of lessons, clinics, and
special skate events were never initiated.
In 2004, private security was hired to assist city staff with issues at the park such as
behavior problems, vandalism, etc. The summer of 2009 the entrance fees were
eliminated and the park remained open for free skating without any programming.
At the May 4, 2011 City Council meeting that was a presentation and discussion of a
proposal from Action Park Alliance (APA) to operate and manage the Palm Springs
ITEM NO.
City Council Staff Report
October 19, 2011 --Page 2
Agreement with APA
Skate Park. The City Council voted 5 — 0 directing staff to work with APA on an
agreement and potential structure for the Skate Park.
Staff has been working with APA on an agreement to operate and manage the park.
APA's management team has over ten (10) years experience in skate park
management and they currently operate and manage skate parks in Fontana, CA (2),
Grand Prairie, TX, and Orlando, FL and they have been very successful at these sites.
Their expertise will take the Palm Springs Skate Park to a new level of programming,
offering camps, clinics, skate contests such as Skate or Rock and Concrete Showdown,
and special events such as National Go Skate Day and Skate Jams. These types of
activities have never been possible with city staff.
Staff has secured a modular structure to be located at the site adjacent to the skate
park for APA to operate and manage the skate park. This will allow for better control of
users entering/exiting the facility. In addition, APA will have an area for the rental and
sale of skate equipment such as boards, pads, helmets, etc.
Anticipated date that operation and management of the Skate Park begins by APA is as
soon as the modular can be installed, potentially in January 2012.
FISCAL IMPACT:
Pursuant to the agreement the annual operation and management fee will be $160,000.
During the 2008-09 and 2009-10 fiscal years the City spent more than $130,000 for
operations and maintenance of the Skate Park;
Three Staff Members $ 92,019
Maintenance - $ 15,000
Security 33,230
TOTAL $140,249
Funds are available in 001-2512-43200 (Skate Park, Contractual Services). Fiscal year
2011/2012 costs would be approximately $80,000 due to only six (6) months of
operation by APA.
VICKI OLTEAN Thomas'TWK ip6n, Asst. City Manager
Director, Parks & Recreation
DAVID H. READY, CACWanager
Attachments: 02
1. Agreement for Operation of Palm Springs Skate Park
AGREEMENT
FOR
OPERATION OF PALM SPRINGS SKATE PARK
RETAIL/PRO SHOP AND CONCESSION
This Agreement ("Agreement") is entered into and effective this _ day of
, 2011 ("Effective Date"), by and between the City of Palm Springs, a
California Municipal Corporation ("City") and Action Park Alliance, hic., a California
Corporation ("APA"). City and APA are sometimes herein referred to individually as "Party"
and collectively as the"Parties."
RECITALS
WHEREAS, the City is the owner of that certain real property located at 401 South
Pavilion Way, which is more particularly described in Exhibit "A", attached hereto and
incorporated herein by reference(the"Property"); and
WHEREAS, a portion of the Property is presently developed and operated as a skate park
open to the public and common referred to as the Palm Springs Skate Park("Skatepark"); and
WHEREAS, the City desires to engage the services of APA for operation and
management of the Palm Springs Skate Park, including a retail/pro-shop and concessions, subject
to the terms and conditions set forth below; and
WHEREAS, APA desires to operate and manage the Palm Springs Skate Park;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained in this Agreement, the Parties agree as follows:
1. Term
1.1. Initial Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a term of five (5) years unless earlier terminated as provided herein
("Term").
1.2. O_ption to Extend. The City may, at its sole discretion, renew the Term of this
Agreement for an additional five (5) year period upon providing written notice to APA at least
ninety(90)days prior to the expiration of the then-current Term.
2. Facilities
2.1. Skate Park. The City currently operates the Skate Park, which is an outdoor
skate park consisting of approximately 30,000 square feet. The Skate Park shall be in a
condition acceptable to APA on the date APA begins management operations pursuant to this
Agreement. The Skate Park must meet or exceed all American Society for Testing and Materials
("ASTM") standards and guidelines. The Skate Park shall include adequate security and access
controls including but not limited to sufficient fencing and video monitoring equipment to meet
03
790628.1
or exceed APA's requirements and guidelines. The Skate Park shall include marquee signage
that is easily viewable from South Pavilion Way.
2.2. Retail/Pro-Shop and Concession. The City shall cause to be built, and provide
a pro-shop structure ("Pro Shop") of at least 2,400 square feet on the Property adjagent to the
Skatepark. The Pro Shop shall be designed and built for the purpose of conducting a back office
operation for the Skatepark and a concession operation. The Pro Shop shall include all necessary
fixtures for the purpose of operation a concession stand, including but not limited to required
sinks, appliances, air vents, employee restrooms, and any other items required by any applicable
law, code, ordinance, or regulation.
2.3. Right of Acceptance. APA's obligations.to operate and manage the Facilities
are contingent upon APA's acceptance of the Facilities and shall not become operative until such
acceptance is communicated to the City. In the event that the Facilities, or any part thereof, do
not meet with APA's approval, APA shall have the right to suggest improvements in writing to
the City and shall advise the City whether the suggested improvements are required to comply
with the ASTM standards or applicable legal obligations. The City, within five(5)business days
of receipt of the suggested improvements, shall notify APA whether it intends to make the
suggested improvements. In the event that the City does not agree to make one or more
improvements, APA shall have the right to terminate the Agreement upon written notice as
provided in this Agreement. If APA does not provide such notice of termination within five (5)
business days of City's determination, APA shall be deemed to have accepted the Facilities, and
all of APA's obligations under this Agreement shall become immediately operative.
3. Operating and Management Agreement.
3.1. Onerating Agreement.
3.LL This Agreement is for the operation, management, maintenance and supervision
of the Facilities. No land, property,building, structure, improvement, equipment space of fixture
is leased to APA, and APA is not a lessee. APA has the right to operate the Facility, including
the right to operate the concession, charge entry fees, provide lessons, promote events and take
other discretionary actions within the scope of this Agreement. The City hereby grants APA a
license to conduct the activities that, in APA reasoned judgment, are reasonably necessary to
perform APA's obligations hereunder, and that license shall continue in effect throughout the
term of this Agreement.
3.1.2. APA is an independent contractor, and not an employee of City. No employee or
agent of APA shall be considered an employee of the City. APA shall pay all wages, salaries,
and other amounts due such personnel in connection with their performance of any services
under this Agreement and as required by law. APA shall be responsible for all reports and
obligations respecting such personnel, including, but not limited to: social security taxes, income
tax withholding, unemployment insurance, and workers' compensation insurance.
3.2. OQperator General Obligations. In addition to any other obligations set forth
in this Agreement, APA shall be responsible for the following:
04
790628.1
(a) APA shall monitor the Facilities and operate the Skatepark in accordance with
all rules,regulations and ordinances of the City.
(b) APA shall take reasonable measures to create and maintain an orderly and safe
environment at the Facilities, and shall provide a structured, supervised
program at the Skatepark seven days a week, with the exception of holidays, as
further detailed and defined in Exhibit `B", attached hereto and incorporated
herein by reference.
(c) APA shall regulate the registration and entry of all persons to the Skatepark
excepting those persons acting on APA's or the City's behalf
(d) APA shall require and shall monitor, regulate and ensure the use of helmets,
skate pads and skate gear in accordance with all City rules and regulations.
(e) APA shall provide no less than two (2) trained staff members at the Facilities
to monitor and regulate all skate activity at the Skatepark during all operating
hours.
(f) APA shall provide all of the special events/services and program activities as
described in the attached exhibits.
(g) APA shall provide the City with park usage reports on a quarterly basis.
(h) APA shall pay all expenses related to the operation of the Facilities according
to the applicable terms of trade.
(i) APA shall engage in such advertising, solicitation and promotional activities as
APA deems necessary or appropriate to advertise the services and programs
provided by APA at the Facilities.
3.3. No Partnership/Joint Venture. APA and the City acknowledge that neither
is the other's agent, partner or fiduciary and that this Agreement was drafted at arm's length and
shall be performed as a matter of arm's length contract and not as a joint venture, partnership or
other arrangement that might give rise to fiduciary or other extra-contractual duties or
obligations not stated herein.
4. Fees.
4.1. Management Fee. The City shall compensate APA under this Agreement as
follows:
4.1.1. Years One and Two. For the first two years of this Agreement, the City shall pay
APA a management fee in the not to exceed amount of One Hundred Sixty Thousand Dollars
($160,000) per year ("Management Fee") in four equal quarterly payments of Forty-Thousand
Dollars ($40,000). Payments shall be invoiced on or before the first day of the month for each
quarter, and the City shall have thirty (30) days following its receipt of an invoice from APA to
pay. Notwithstanding the foregoing, following the first quarter's payment, the City shall not be
required to make a payment to APA until the City is in receipt of APA quarterly financial report,
as described herein, for the prior quarter. In addition, during the first two years of this
Agreement, APA shall retain all revenues collected through the operation of the Skatepark,
including retail, concession,programming, and entry fees.
05
790628.1
4.1.2. Years Three through Five. The fee arrangement for years three through five of
this Agreement shall be negotiated between the Parties and agreed upon no later than ninety(90)
days prior to the end of the preceding year. APA shall receive a management fee of no less than
One Hundred Sixty Thousand dollars ($160,000) per year, provided the revenue sharing remains
the same as set forth in Section 4.1.1., above.
4.1.3. First Payment. Upon execution of this Agreement, the City shall pay APA the
first quarter's payment.
4.1.4. Late Payment. In the event the City fails to make a timely payment, interest
shall accrue at the rate of 10% per annum.
4.1.5. In the event that the City desires increased insurance coverage, the Management
Fee shall be increased as negotiated; failure to agree on an increase shall relieve APA of any
duty to adjust the required insurance.
5. Operations, Utilities,Permits and Taxes.
5.1. Utilities. APA shall pay and be liable for all utility charges related to the
operation of the Facilities, including telephone, internet, and electrical charges for the Pro Shop.
The City shall be solely responsible and liable for all other utilities related to the operation of the
Skate Park such as the costs for the exterior lighting.
5.2. Taxes.
5.2.1. The City is solely liable for the property taxes and special assessment taxes for the
Facilities.
5.2.2. APA shall collect and pay applicable sales taxes on sales of non-exempt items in
the Pro-Shop. APA shall be responsible for applicable personal business property taxes for
owned personal property held within the Pro-Shop (including inventory). APA shall pay all
employment taxes directly arising out of its operation of the Facilities.
5.3. Operating Plan. Prior to the expiration of thirty(30) days from the Effective
Date, APA shall develop an Operating Plan for the Pro Shop and concession operation of the
Facilities ("Operating Plan"). APA shall submit the Operating Plan to the City for approval,
which shall not be unreasonably withheld. Should the City require significant revisions to the
Operating Plan, APA shall have a reasonable time to make such revisions and resubmit the
Operating Plan for approval. The Operating Plan shall cover policies for such items as: days and
hours of operation, guest services, proshop and concession management (including safety
programs, security, maintenance schedule, and emergency procedures), guest management (fees,
marketing and advertising), employment (including employee screening procedures and
discipline policy), complaint review process, procedures for enforcing participation rules
applicable to guests, and other appropriate areas of operational concern
06
790628.1
5.4. Employee Training. APA shall provide its employees an orientation regarding
operation of the Facilities, including a review of all applicable regulations, policies, procedures
and safety measures. The City may, in its discretion, provide an orientation on its policies and
procedures for APA's employees, or may provide APA information reasonably sufficient to
enable APA to conduct an orientation on the City's policies and procedures. All employees
providing supervision or training at the Skatepark shall be experienced in providing such
services, and shall have appropriate training in first aid, CPR, and other safety skills.
5.5. Photography. With the City's prior consent, which shall not be unreasonably
withheld, APA shall have the right to grant authorization to persons or corporations associated
with APA to engage in the production of still and motion pictures and related activities for the
use of the Skatepark. APA shall, as a condition of any authorization for filming at the Facilities,
require reimbursement to the City for any out-of-pocket costs incurred directly from such filming
activity. No person shall be filmed or photographed without his or her prior written consent. In
the case of minors, the written consent of a parent or guardian shall be required.
5.6. Additional Security. APA shall install and operate security cameras, which will
enable APA to provide 24-7 monitoring of the Facilities.
5.7. Permits. APA shall at all times maintain the proper City and County Health
Department permits and inspection rating required for its food and beverage sales. APA shall
procure a business license from the City prior to beginning operations at the Facilities, and shall
maintain a valid license at all times throughout the duration of this Agreement. The City shall
cooperate in expediting any and all permits. The City shall provide all other permits, licenses,
and permissions required by law or that APA deems necessary to perform the Agreement.
5.8. Inventory. APA shall maintain an inventory at the Pro Shop of necessity and
replacement items, including wheels, trucks, skateboard decks and so forth, at the Pro Shop.
APA shall also maintain a fully-stocked concession operation including fountain drinks, water,
and snack foods at the Pro Shop.
6. Reporting,Books and Records.
6.1. APA to Provide Reporting. Upon written request, with no fewer than 21 days
notice and no more than once per year, unless otherwise required by law, APA, at its sole
discretion, shall make available for inspection or provide copies of its books and records to the
City. Notwithstanding the foregoing, APA shall maintain the following records and make the
records available to the City upon request:
6.1.1. APA shall maintain complete and accurate records with respect to all costs and
expenses incurred under this Agreement.
6.1.2. APA shall keep detailed injury reports, maintenance reports, liability waivers, and
incident reports, both electronically and in hard copy. APA shall complete and submit any
required annual reporting and documentation to the State of California to comply with
recreational immunity provisions. The City shall provide APA with all information in its
07
790628.1
possession or control that may assist APA in complying with this requirement. The City shall
cooperate fully with APA to provide this information.
6.1.3. APA shall provide quarterly and annual park usage reports to the City as soon as
is practicable after the closing of APA's books for such quarter or year.
6.1.4. APA shall maintain all records described in this Section 6 for a period according
to APA's then existing document retention policy in effect at the time of expiration or
termination of this Agreement.
7. Maintenance and Repairs.
7.1. Skatepark. APA shall conduct daily park inspections and report any material
maintenance issues to the City for further action. The City shall be responsible for all material
repairs and all structural and warranty work. APA shall be responsible for minor maintenance
such as painting, trash and minor graffiti removal.
7.2. Pro Shop. The City shall be responsible for maintenance of the exterior of the
Pro Shop building, including major appliances such as HVAC and electrical related items. APA
will maintain the interior of the Pro Shop building, including all fixtures provided, and will be
liable for any repair of such that costs less than five hundred dollars ($500). APA shall also be
responsible for coordinating the service and maintenance of all warranty related repairs to any
appliances or parts of the building as well as coordinating and facilitating any required
documentation.
7.3. Appearance. APA shall maintain at all times in a clean and orderly condition
and appearance, the Pro Shop, and areas adjacent to the Pro Shop. APA shall be responsible for
ensuring all trash is placed in the trash receptacles. The City shall be responsible for collection
of trash from the trash receptacles and shall arrange for collection to occur as frequently as is
necessary to maintain the Facilities in clean and working order.
7.4. Review. APA's on-site manager shall meet at least quarterly, and more
frequently if necessary, with the City to review the condition of the facilities.
8. Hours of Operation; Staffmg.
8.1. Unless otherwise agreed to in writing by the City, and except for closures,
interruptions or delaying resulting from inclement weather, natural disasters, fires, water
shortages, riot, war,the negligence or fault of the City, or its employees, agents or contractors, or
other events or circumstances beyond APA's control, APA shall keep the Skatepark and Pro
Shop open pursuant to the schedule provided in Exhibit `B". APA shall not change the
operating schedule without the prior approval of the City, which shall not be unreasonably
withheld. APA shall maintain staffing levels within the parameters set forth in Exhibit B.
08
790628.1
9. Pricing.
Skatepark pricing levels shall be as set forth in Exhibit"B". APA shall not change pricing levels
without the prior written approval of the City, which shall not be unreasonably withheld. APA
shall have the right to set all prices charged to customers of the Pro Shop. APA shall not
increase prices in the Pro Shop without first giving the City ten (10) days' written notice of such
increases, but such increases shall not require the approval of the City.
10. Assignment.
This Operating Agreement is in the nature of a personal services contract not subject to
assumption or assignment under 11 U.S.C. Section 365. APA shall not assign or sublease any of
its interest under this Agreement without the prior written consent of the City, which consent
shall not be unreasonably withheld or delayed.
11. Advertising; Special Events.
11.1. The City shall include APA in any promotional materials produced by the Parks
and Recreation Department.
11.2. APA may install on the Property, subject to any applicable sign ordinance, signs
identifying its business. APA shall have the right to conduct special events, which may
incorporate activities that, in APA's reasonable judgment, relate to the mission and purpose of
the Skatepark. During such special events APA may display signage of their sponsors or the
event sponsors.
12. Termination.
12.1. City may terminate this Agreement at any time, with or without cause, upon
ninety (90) days written notice to APA. Where termination is due to the fault of APA and
constitutes an immediate danger to health, safety, and general welfare, the period of notice shall
be such shorter time as may be determined by the City. Upon receipt of the notice of
termination, APA shall immediately cease all services except such as may be specifically
approved by the City.
12.2. APA shall be entitled to compensation for all services rendered prior to receipt of
the notice of termination and for any services authorized by the City after such notice.
12.3. APA may terminate this Agreement at any time that it is not in default in its
obligations by giving the City thirty (30) days' written notice after the occurrence of any of the
following events:
12.3.1. The failure of the City to materially perform any of its obligations under this
Agreement, if the City fails to cure its default within said 30-day notice period; or if a cure is not
reasonably possible within 30 days and such default has not been caused by the City's gross
09
790628.1
negligence or intentional misconduct, the failure of the City to initiate necessary action to cure
the default and to diligently proceed with such action until the default is cured.
12.3.2. Issuance by a court of competent jurisdiction of an injunction in any way
preventing or restraining APA's use of any substantial portion of the Facilities and the remaining
in force of such injunction for a period of 30 consecutive days.
12.3.3. The inability of APA to use any substantial portion of the Facilities for a period
of 30 consecutive days, due to the enactment or enforcement of any law or regulation or because
of fire, earthquake or similar casualty, or Acts of God or the public enemy.
12.3.4. The material breach of any of the City's representations and warranties set forth
in this Agreement.
13. Representations and Warranties. The City hereby warrants and represents (with the
understanding that APA is relying on said warranties and representations)that:
13.1. The transactions contemplated by this Agreement and the execution and delivery
of all documents required herein and their performance hereunder have been duly authorized.
The execution and delivery of this Agreement and any other document required herein and the
consummation of the transactions contemplated hereby and thereby will not result in any
violations of or default under any term or provision of any agreement, instrument, mortgage,
loan or similar documents to which the City is a party or by which it is bound.
13.2. There is no existing, pending or anticipated condemnation or similar proceeding
against or involving the Property.
13.3. The City has not entered into any leases, options, contracts or rights of first
refusal, recorded or unrecorded, affecting the Pro Shop building which have not been disclosed
to APA.
13.4. The individuals executing this Agreement on behalf of the City are authorized and
empowered to enter into this Agreement.
13.5. The City is not prohibited from consummating the transaction contemplated in
Us Agreement by any law, regulation, agreement, instrument,restriction, order or judgment.
13.6. No work has been performed or is in progress at or on the Pro Shop and no
materials have been furnished to the Property which might give rise to mechanic's,
materialman's or other liens against the or any portion thereof.
14. Indemnification.
To the fullest extent permitted by law, APA shall defend (at APA's sole cost and expense),
indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and
volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities,
actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements,
damages, demands, orders, penalties, and expenses including legal costs and attorney fees
10
790628.1
(collectively "Claims"), including but not limited to Claims arising from injuries to or death of
persons (APA's employees included), for damage to property, including property owned by City,
from any violation of any federal, state, or local law or ordinance, and from errors and omissions
committed by APA, its officers, employees, representatives, and agents, that arise out of or relate
to APA's performance under this Agreement. This indemnification clause excludes Claims
arising from the sole negligence or willful misconduct of the City, its elected officials, officers,
employees, agents, and volunteers. Under no circumstances shall the insurance requirements and
limits set forth in this Agreement be construed to limit APA's indemnification obligation or other
liability under this Agreement. APA's indemnification obligation shall survive the expiration or
earlier termination of this Agreement until all actions against the Indemnified Parties for such
matters indemnified are fully and finally barred by the applicable statute of limitations or, if an
action is timely filed, until such action is final. This provision is intended for the benefit of third
party Indemnified Parties not otherwise a party to this Agreement.
15. Insurance.
APA shall procure and maintain insurance as provided for in Exhibit "C", attached hereto and
incorporated herein by reference.
16. Risk Management.
APA shall require all participants to sign a liability waiver releasing APA and the City of
liability. All participants under age 18 must have a parent or guardian, with valid identification,
execute the release prior to use of the Skatepark. The City shall have the right to approve the
final wording of the release. APA shall require all participants to use safety gear at all times, as
provided above.
17. Surrender of Possession.
Upon the expiration or termination of this Agreement, APA's right to occupy the Facilities and
exercise the privileges and rights herein granted shall cease, and APA shall surrender the same,
and leave the building in good condition, normal wear and tear excepted. Unless otherwise
provided herein, all trade fixtures, equipment and other personal property installed or placed by
APA in the Pro Shop building shall remain the property of APA, and APA shall have the right at
any time during the term of this Agreement, and for an additional period of twenty (20) days
after its expiration, to remove the same from the Property; provided that APA is not in default of
any of its obligations hereunder and that APA repairs at its sole cost any damage caused by such
removal. Any property not removed by APA within said 20-day period shall become a part of
the Property and ownership thereto shall vest in the City.
i1
790628.1
18. Notice.
All notices required or permitted to be given under this Agreement may be personally delivered
or mailed by certified mail,return receipt requested,postage prepaid, to the following addresses:
City: City of Palm Springs
David Ready, City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
APA: Action Park Alliance
Kirsten Bradford, CEO
15131 Clark Ave.
City of Industry, CA 91745
Any notice given by certified mail shall be deemed to be received on the next business day after
the date of mailing. Either party may designate in writing a different address for notice purposes
pursuant to this Section.
19. Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to
be effective and valid under applicable law. 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 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 shall be interpreted to carry out the intent of the
parties.
20. Compliance with Laws.
APA shall at all times comply with all federal, state and local laws, rules and regulations which
are applicable to its operations on the Property, including all laws, rules and regulations adopted
after the Effective Date.
21. Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming
under or through them, that there shall be no discrimination or segregation in the performance of
or in connection with this Agreement regarding any person or group of persons on account of
12
790628.1
race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or
ancestry.
22. 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 instituted in the
Superior Court of the County of Riverside, State of California, or any other appropriate court in
such county, and APA covenants and agrees to submit to the personal jurisdiction of such court
in the event of such action.
23. Interpretation.
This Agreement shall be construed as a whole according to its fair language and common
meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are
contractual and the result of negotiation between the Parties. Accordingly, any rule of
construction of contracts (including, without limitation; California Civil Code Section 1654) that
ambiguities are to be construed against the drafting party, shall not be employed in the
interpretation of this Agreement. The caption headings of the various sections and paragraphs of
this Agreement are for convenience and identification purposes only and shall not be deemed to
limit, expand, or define the contents of the respective sections or paragraphs.
24. Waiver.
No delay or omission in the exercise of any right or remedy of a non-defaulting party on any
default shall impair such right or remedy or be construed as a waiver. No consent or approval of
City shall be deemed to waive or render unnecessary City's consent to or approval of any
subsequent act of APA. Any waiver by either party of any default must be in writing. No such
waiver shall be a waiver of any other default concerning the same or any other provision of this
Agreement.
25. 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. 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.
26. Arbitration.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation or validity thereof, including the determination of the
scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los
Angeles, California, before one arbitrator, who shall be a retired judge. At the option of the first
to commence an arbitration, the arbitration shall be administered either by the American
Arbitration Association (AAA) pursuant to its Commercial Rules or by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in
13
790628.1
any court having jurisdiction. This clause shall not preclude parties from seeking provisional
remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the
Award, allocate costs, reasonable attorney's fees, expert-witness fees, other litigation fees and
expenses including the costs of arbitration to the prevailing party in accordance with the
Attorneys' Fees provision,below.
27. Attorneys' Fees.
In the event of any action, suit, arbitration, or other proceeding of any nature is brought in
connection with the payment terms of this Agreement, the prevailing party shall be entitled to
recover its reasonable attorney's fees, expert-witness fees, other litigation costs and fees (e.g.,
deposition costs,trial preparation costs, etc.), and other costs and expenses of suit.
28. Non-Liability of City Officers and Employees.
No officer or employee of City shall be personally liable to APA, or any successor-in-interest, in
the event of any default or breach by City or for any amount which may become due to APA or
its successor, or for breach of any obligation of the terms of this Agreement.
29. Integrated Agreement.
This Agreement contains all of the agreements of the parries and supersedes all other written
agreements.
30. Amendment.
No amendments or other modifications of this Agreement shall be binding unless through written
agreement by all Parties.
31. Successors in Interest.
This Agreement shall be binding upon and inure to the benefit of the Parties' successors and
assignees.
32. Recitals.
The above-referenced Recitals are hereby incorporated into the Agreement as though fully set
forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for
purposes of this Agreement,by the same.
33. Authority.
The persons executing this Agreement on behalf of the Parties warrant that they are duly
authorized to execute this Agreement on behalf of Parties and that by so executing this
Agreement the Parries are formally bound to the provisions of this Agreement.
14
790628.1
34. Future Acts and Cooperation
The City recognizes and acknowledges that APA will require the assistance and cooperation of
the City in order to properly perform and fulfill APA's covenants and obligations under this
Agreement including the execution of certain documents. The City agrees it shall designate a
specific officer or agent having appropriate experience and authority whose responsibility it is to
work with APA in assuring that APA obtains the cooperation and assistance of the City, subject
to the terms of this Agreement and all applicable laws.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates
stated below.
CITY OF PALM SPRINGS
Date: By:
David H. Ready
City Manager
APPROVED AS TO FORM: ATTEST
By: By:
Douglas C. Holland, James Thompson,
City Attorney City Clerk
ACTION PARK ALLIANCE, INC.
Date: By :
Printed Name:
Title:
I5
790628.1
EXHIBIT A
The Skate Park is approximately 30,000 s.f and is located in Sunrise Plaza next to the
Palm Springs Swim Center.
16
EXHIBIT`B"
Hours of Operation; Pricing; Staffing
Action Alliance Skate Park of Palm Springs Hours of Operation
Weekdays - 12:00 p.m. to 10:00 p.m.
Weekends - 9:00 a.m. to 10:00 p.m.
Holidays - 9:00 a.m. to 10:00 p.m.
Pricing
Annual Memberships-
Resident Memberships $15.00
• Non-Resident Memberships $25.00
Programming-
Camps- 5 weeks during the summer. TBD
• Lessons & Clinics—scheduled throughout the year TBD
• Contests—such as Concrete Showdown,Valentines
Game of skate,Nude Bowl contest, etc. TBD
• Special Events - Go Skate Day, Skate or Rock, etc. TBD
No more than 12 per calendar year
Staffing
• APA shall provide no less than two (2)trained staff members at the Facilities to
monitor and regulate all skate activity at the Skate Park during all operating hours.
At least one (1) management level staff member shall be present during all
operating hours.
17
790630.1
tyP�MiP EXHIBIT C
v a
•'''illl0•��P
INSURANCE REQUIREMENTS
FOR CITY CONTRACTS
Instructions to ContractorslVendors/Service Providers:
Prior to commencing any work, all contractors, vendors and service providers shall procure
and maintain, at their own cost and expense for the duration of their contract with the City,
appropriate insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the performance of the work or services. The types of
insurance required and the coverage amounts are specified below:
A. Minimum Scope of Insurance Required
1. General Liability Insurance is required whenever the City is at risk of third-party
claims which may arise out of work or presence of a contractor, vendor and service
provider on City premises. At a minimum this policy shall:
• be written on a per occurrence basis; and
• include products and completed operations liability, independent contractors
liability, broad form contractual liability, and cross liability protection.
2. Automobile Liability Insurance is required only when vehicles are used by a
contractor, vendor or service provider in their scope of work or when they are driven
off-road on City property. Compliance with California law requiring auto liability
insurance is mandatory and cannot be waived. At a minimum this policy shall:
• be written on a per occurrence basis;
• include coverage for Bodily Injury and Property Damage, Owned, Non-owned
and Hired Vehicles; and
• include coverage for owned, non-owned, leased and hired vehicles.
If an automobile is not used in connection with the services provided by the contractor,
vendor or service provider, a written request to waive this requirement should be made
to the City's Risk Manager.
3. Workers' Compensation and Employer's Liability Insurances is required for any
contractor, vendor or service provider that has any employees at any time during the
period of this contract. Contractors with no employees must complete a Request for
Waiver of Workers' Compensation Insurance Requirement form available from the
City's Risk Manager. At a minimum, this policy shall:
• provide statutory requirements of the State of California; and
Revised 8124/2007 1
• include $1,000,000 Employer's Liability.
4. Errors and Omissions (If applicable) coverage is required for licensed or other
professional contractors doing design, architectural, engineering or other services that
warrant such insurance. At a minimum this policy shall:
• cover liability for malpractice or errors and omissions made in the course of
rendering professional services.
B. Minimum Limits of Insurance Coverage Required
$1 Million per Occurrence/$2 Million Aggregate
Umbrella excess liability may be used to reach the limits stated above.
Additional insurance requirements may be imposed by the City for services or products
that have a higher risk. Refer to the City's Risk Manager for information of the insurance
requirements for the following types of services or products:
1. Construction contracts which are awarded or administered through City
departments other than the Public Works Department;
2. Medical, excavation, drilling, trenching or shoring services, or services involving
explosives or pyrotechnics;
3. Environmental consulting, engineering or related services or operations;
4. Custom manufactured products;
5. Products or services involving firearms, tobacco, alcohol, or controlled substances;
6. Any unusual or high-risk activities, operations or products.
C. General Standards for Insurance Policies:
All insurance policies shall meet the following general standards:
1. Insurance carrier is to be placed with duly licensed or approved non-admitted insurers
in the State of California.
2. Insurers must have a Bests rating of B+, Class VII or higher(this rating includes those
insurers with a minimum policyholder's surplus of$50 to $100 million). Exceptions to
the Besfs rating may be considered when an insurance carrier meets all other
standards and can satisfy surplus amounts equivalent to a B+, Class VII rating.
3. Certificate must include evidence of the amount of any deductible or self-insured
retention under the policy.
D. Verification of Insurance Coverage:
All individuals, contractors, agencies, and organizations conducting business for the City
shall provide proof of insurance by submitting one of the following: (1) an approved
Revised 8/24/2007 -2-
19
General and/or Auto Liability Endorsement Form for the City of Palm Springs:or(2) an
acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured
Endorsement(see attached)with the following endorsements stated on the certificate:
1. "The City of Palm Springs, its officials, employees and agents are named as an
additional insured" ("as it relates to a specific contract" or "for any and all work
performed with the City" may be included in this statement).
2. "This insurance is primary and non-contributory over any insurance or self-insurance
the City may have" ("as it relates to a specific contract' or "for any and all work
performed with the City" may be included in this statement). See Example A below.
.
j. .. L m'
C
n
tits officers, officials and employees for losses paid under the terms of
this policy which arise from the work performed by the named insured for the City."
3
., anguage such as, endeavor to" matl and "but failure to mail such notice shall
impose no obligation or liability of any kind upon the company, its agents or
representative" is not acceptable and must be crossed out. See Example B below.
The Workers' Compensation and Employers' Liability policies shall contain waiver of
subrogation clause in favor of City, its elected officials, officers, employees, agents and
volunteers. See Example C below.
In addition to the endorsements listed above, the City of Palm Springs shall be named the
certificate holder on the policy.
All certificates and endorsements are to be received and approved by the City before work
commences. All certificates of insurance must be authorized by a person with authority to
bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not
waive the contractor's obligation to provide them.
E. Acceptable Alternatives to Insurance Industry Certificates of Insurance:
The City will accept either a CG 20 10 10 01 or a CG 20 33 10 01 (or some form specific to
a particular insurance company that has similar wording) as long as the form is
accompanied by a CG 20 37 10 01. In addition, the City will accept the following:
• A copy of the full insurance policy which contains a thirty (30) days' cancellation notice
provision (ten (10) days for non-payment of premium) and additional insured and/or
loss-payee status, when appropriate, for the City.
Revised 8/24/2007 - 3 -
20
• Binders and Cover Notes are also acceptable as interim evidence for up to 90 days
from date of approval
F. Endorsement Lanauage for Insurance Certificates
Example A: ! THE INSURANCE SHALL BE PRIMARY WITH RESPECT TO THE
INSURED SHOWN IN THE SCHEDULE ABOVE,OR IF EXCESS,
SHALL STAND IN AN UNBROKEN CHAIN OF COVERAGE EXCESS
OF THE NAMED INSURED'S SCHEDULED UNDERLYING
PRIMARY COVERAGE. IN EITHER EVENT,ANY OTHER
INSURANCE MAINTAINED BY THE INSURED SCHEDULED
ABOVE SHALL BE IN EXCESS OF THIS INSURANCE AND SHALL
NOT BE CALLED UPON TO CONTRIBUTE WITH IT.
{
Example B: SHOULD ANY OF THE ABOVE-REFERENCED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE j
ISSUING INSURER WILL €�MEAVQR TO MAIL 30 DAYS*
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED
HEREIN BUT FAILURE TT T TD E TO MAIL A I S G! NOTICE SHALL T T TT,T Ol 6
NO OBLIGATION G T T A DTT nTY OF A ATV TT ND UPON TiTti
INSURER,
ITS AGRq8 OR RBPRESR�MkTWE9.
*The broker/agent can include a quaker staring "10 days notice for
nonpayment ofpremium."
Example C: IT IS UNDERSTOOD AND AGREED THAT THE COMPANY WAIVE
THE RIGHT OF SUBROGATION AGAINST THE ABOVE i
ADDITIONAL INSURED (S), BUT ONLY WITH RESPECT TO THE
JOB OR PREMISES DESCRIBED IN THE CERTIFICATE ATTACHED i
HERETO.
G. Alternative Programs/Self-Insurance. Under certain circumstances, the City may accept
risk financing mechanisms such as Risk Retention Groups, Risk Purchasing Groups, off-
shore carriers, captive insurance programs and self-insurance programs as verification of
insurance coverage. These programs are subject to separate approval once the City has
reviewed the relevant audited financial statements and made a determination that the
program provides sufficient coverage to meet the City's requirements.
The City has recently joined SPARTA (Service Providers & Artisans Trade Activities
Program) to accommodate smaller contractors and service providers who have difficulty in
meeting the City s insurance requirements. The SPARTA Program offers a general liability
program that provides the $1 million limit and, upon request, will also provide auto
insurance with the $1 million limit (only in conjunction with the purchase of general liability
Revised 8/24/2007 -4-
21
insurance). SPARTA is only available during the time your company is under contract with
the City.
Insurance is provided on a per project basis and is overseen by the Municipality Insurance
Services, Inc. Essex Insurance Company provides coverage and is an A++ rated
company. There is a 24-hour response time and coverage is immediate.
A quote may be obtained by calling 1-800-420-0555 or online at www.2sparta.com .
Type of work covered:
A. Personal services contracts;
B. General contractors and their subcontractors (certain specialty trades excluded);
C. Consultants; and
D. Providers of goods.
H. Waiver or Modification of the Insurance Requirements.
Any waiver or modification of the insurance requirements can only be made by the City's
Risk Manager or designee at City's discretion. If you do not believe that the insurance
requirements apply to you (e.g., you do not have employees and therefore are not subject
to the State's workers' compensation insurance requirements; you do not drive an
automobile in connection with the services you provide to the City; professional liability or
errors and omissions liability insurance is not available for the type of services you are
performing, etc.), please submit a written request for waiver or modification of the
insurance requirements and the reasons underlying your request to the Risk Manager. All
requests for a wavier or modification will be reviewed and a final determination rendered
by the Risk Manager.
Revised 8/24/2007 -$ -
22