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HomeMy WebLinkAbout05138 - DICK TAYLOR PRODUCTIONS INC PALM SPRINGS PAVILLION THEATER 3 YEAR LOAN R9 d daI L0 9B)(Chatpler 7 Co r do /Panne e N—Q.Asset Case 12/07 UNITED STATES BANKRUPTCY COURT Central District Of California `NIY ,pFi3:.8h"� 1,uPRp >,t:yuu,)<' `"'u'.1,?S ,c�; .9}'° `,�i ;i.,;.., ,ly A Chapter 7 bankruptcy case concerning the debtor(s)listed below was filed on December 31,2007. You may be a creditor of the deblor.'rhis notice lists important deadlines.You may want to consult an attorney to protect your rights.All documents filed in the case may be inspected at the bankruptcy clerk s office at U.S. Bankruptcy Court,3420 Twelfth Street, Riverside,CA 92 501-381 9 NOTE: The staff of the banlmr tc clerk's office cannot rive le al advice. ...... ........:•,;,„'r,n;,xa',• iti'i.,<ti'i"ii'a,' :°;tRM'n;✓;,tidn•'a$t; kK+t' _ $:.n..x=.-,.,. . . ,. y�y� if .�<1� , 1tlG,is"eixi:uMC'j",'.,L, :":�?iti:`';?�k BSI`x.F............3r1 RT% T � ,, nG... . . Debtor(s)(name(s)and address) Dick Taylor Productions,Inc. Case Number: 170 N.Palm Canyon Dr,Ste B 6:07—bk-18851—DN Palm Springs,CA 92262 All other names used by the Debtors)in the last 8 years(include Last four digits of Social Security or Individual Taxpayer-113(ITIN) trade names): No(s)./Complete EIN: Debtm Dbt P„INfrax I.D.:05-0564071 Joint Debtor: Attorney for Debior(s)(name and address): Bankruptcy Trustee(name and address): Thomas J Polis _ Christopher R Barclay _ Polis&Associates,APLC PO Box 26099 19800 MacArthur Blvd Santa Ana,CA 92799 Ste 1000 Telephone number: (714)415-4040 Irvine,CA 92612-2433 Telephone number: 949-862-0040 : R'trRj,e�i:14ix,�;.,n,q :.a, , ufgkks„+j,+a,Ai,,+ ':?s:.,.,;,xa;, ••x•an.�..^.,.,.,, ; ; Nn 1�•.pi'' : .. ,^ G;,• I �,wM UM e.•,.x,,::Fx„! x'%:,il ,.:x<•xro,c,.• a,{ ".3 s3jd�"e m;tiixii ;in°=1 'Ki I.:Ki;t, �. "x p Date: February 7,2008 Time: 10:00 AM Location: 3420 Twelfth St,Room 1006,Riverside,CA 92501 00 trio+'fski:e•N�k^x,�rA'i +'9ih+Ai�i4u�i,;kl,,,,x•,� „�Jrt..... ,x„� t: n'ii....F• ,r,... ;: ,;,n ..?, ^,�..an:s;"n?,', ;%a•x,x3,j, • •% ;�:."��, ,• u"�:, x',; i' k„•,%p%e...�+,i; q%"nE�'!P•n•�.NnSl�E'��`,`px;A;:,:,;;".:s";n',`ei`:�`•";<j�i„t 'd s=`#;%,":: •R••3a �a;n •'il, t:3r x In most instances,the tiling of the hankniptcy case automatically slays certain collection and other actions against the debtor and the debtor's property.Linder axtain circumstanes,the stay may be limitcd to 30 days or not exist at all,although the debtor can rcyuest the court to extend or impose a stay.If you anempt to collect a debt or take other action in violation of the Bankruptcy Code,you may be penalized- Consult a lawyer to determine your rights in this case. Please Do Not File a Proof of Claim Unless You Receive a Notice To Do So. :.,rn,i..i;?' t'i',,..., .%n:;d• ',j::rrx?"£. a.+;p�,.:Ka,?'jt:a.•; :,:: '%;p„j, ..:•�;a: ri=x',;, "�,� �,� � �.. �-x.,,., ,.,.;< t'�ntana€ :.? ,.: ,n;,,,:_.^:::,:,:ukuk',,;;:;„:,K�i�l ? ca N 3o;+%`,ro<,.?•un;3';'",» ",A •y` c�t��.dt33id•d:r;�8, jr nR'y �.%S'+?':;�;'+%<j,,.. ry� x bE!. .:� p,, ,:x,j <nx, ��j;, A creditor to whom this notice is sent at a foreign address should read dine information under"Do Not File a Proof of Clarm at'rhrs'rime" on the reverse side. Addm,s Twelfth Street, Bankruptcy Clerk's Office: 0,,M,§�xk�M .y�?��apnngwnu�;`.'.``!`x3 (', ,R„.,... . . '['i'u:::Y;:.,�1�'1� a�bgMi i'•,a„a,,ai;Fi'dRN;:;i n.....b":$xi Rive Twelfth Street, Clerk of the Bankruptcy Count; Riverside,CA 9v501-3819 Jon D.Ceretto P •role bone number. 951-774—I(HHl Hours O en: 9:00 AM—4;00 PM Date: JarmaiN 2 2008 (fur.n:r.12107 3 41—a9B) r ;J N 7 ca —C 0-7 vD r G =� CJ'1 C7 U?1157 EXPLANATIONS B9B(OfPtclal Form 9B)(12t07) Filing of Chapter 7 A bankruptcy case under Chapter 7 of the Bankruptcy Code(title 11,United States Code)has been tiled in this court Bankruptcy,Case by or against the delta s listed on the front side,and an order for relief has keen entered. Legal Advice The staff of the bankruptcy clerk s office cannot give legal advice_Consult a lawyer to determine your rights m this case_ Creditors Generally Prohibited collection actions are listed in Bankruptcy Cade§362.Common examples oi'prohibited actions include May Not'fake Certain contacting the debtor by telephone,mail or otherwise to demand repayment;taking actions to collect money or Actions obtain property from the debtor;repossessing the debtor's property;and starting or continuing lawsuits or foreclosures.Under certain circumstances,the slay may be limited to 30 days or not exist at all.although the debtor can rcquest the court to extend or impose a stay. Meeting of Creditors A meeting of creditors is scheduled for the date,time,and location listed on the front side.The debtor's representative must be present at the meeting to be questioned under omb by the trustee and by creditors.Creditors are welcome to attend,but are not required to do so-The meeting may be continued and concluded at a later date without further notice.The inrslee is designated to preside at the meeting of creditors. The case is covered by the Cha ter 7 blanket baud on file with the Court- Do Not File a Proof There does not appear to be any property available to the trustee to pay creditors.You therefore should not file a of Claim ul This Time proof of claim at this time.If it later appears that assets are available to pay creditors,you will be sent another notice telling you that you may file a proof of claim,and telling you the deadline for filing your proof of claim-If this notice is mailed to a creditor at a foreign address,the creditor may file a motion requesting the court to extend the deadline. Bankruptcy Clerk's Any_pape<that-y-ori lc in,thei-bankrupicy cash should be filed at the bankruptcy clerks officeat the U.S. Office Bankruptcy Gault,3420 Twelfth Street,Riverside,CA 92501-3819 You may Inspect all papers tiled, including the list of the debtors property and debts and the list of the property claimed as exempt,at the bankruptcy clerk's office at the address listed about. Creditor with a Consult a lawyer familiar with United States bankruptcy law if you have any questions regarding your rights in this Foreign Address case. Failure to File a IF THE DEBTOR HAS NOT FILED A STATEMENT AND/OR SCHEDULE(S)AND/OR OTHER Statement mdtor REQUIRED DOCUMENTS,the debtor must do so,or obtain an extension of time to do so,within 15 days of the Schedule(s) petition filing date.Failure to comply with this requircmcriL or fa hm:to appear at the initial Section 341(a)meeting of creditors and any continuance thereof,may result in dismissal of the case,unless leave of court is first obtained.If the debtors case has not already been dismissed.AND DEBTOR FAILS TO DO ONE OF T1IF.FOLLOWING WITHIN 45 DAYS AFTER THE PETITION DATE,subject to the provisions of bankruptcy Code section 521(i)(4),the Court WILL dismiss the case effective on the 46dr day after the petition date without further notice; (1)file all documents required by Bankruptcy Code section 521(a)(1);or(2)file and serve a motion for an order extending the time to file the documents required by this section. Bankruptcy Fraud Any questions'or information relating to bankruptcy fraud or abuse should be addressed to the Fraud Complaint and Abuse Coordinator.Office of the United States Trustee. 3695 Main Street,Suite 300,Riverside,CA 92501- - R r t f rIm nCeS 021157 50304021200012 POLIS @ ,ASSOCIATES A PROFESSIONAL LAW CORPORATIOrq NEWPORT GATEWAY TNOMAS J. POLIS 19900 MACARTHUR BOULEVARD, SUITE 960 to�Cc'paliu.law-cam IRVINE,CALIFORNIA 92612 TEL 949.867,0040 FAX 949.862.0041 December 4, 2007 VIA HAND DELIVERY Douglas C. Holland, Esq. n c/o City of Palm Springs Council Chambers p�"„ •, �''l_OS� 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Q Re: Richard W, Taylor Debt Repayment Plan Dear Mr. Holland: Pursuant to our recent conversations and the fully executed October 22, 2007 debt Repayment Plan, enclosed is a check in the amount of$273,818.00 made payable to the City of Palm Springs. This check is in full and complete satisfaction of the City of Palm Springs'claims against Richard Wesley Taylor and Guy Lawson as specifically identified in the Debt Repayment Plan. This letter and the City Of Palm Springs' negotiation of the enclosed $273,818.00 check shall constitute the City of Palm Springs' acknowledgment that it has been paid in full on the claims identified in the fully executed October 22, 2004 Debt Repayment Plan, If you have any questions or comments, please crab my office, Very truly yours, POLI5 & ASSOCIATES A PROFESSIONAL. LAW CORPORATION Thomas J. (Palls ,RICHARp W.'TAYLt)R + uN Ne ,. 07425 IC ANK,OF CA GVY WI. LAWSpN; , ,�� : ,SFVERLY HILLS,cA 90212 " - -.'.'13%gAMINO NOR7e, 1'8.49/1220 'PALM SPR'INGS': CA 92262 - • - 12/5/07 o 'PAY TOTHF oFol a-oF City of Palm Springs $ ***273,8l&00 F s Two hundred seventy-three thousand eight hundred 6ialiteen and DOLLARS City,of Palm Springs Att: Doug Holland,, City Attorney Tahquitz Canyon,Way Palm Springs, CA 42262 MEMO DT'P Loan Final Payment - 1 AGREEMENT FOR OPERATION OF PALM SPRINGS PAVILLION THEATER THIS AGREEMENT FOR OPERATION OF PALM SPRINGS PAVILLION THEATER ("Agreement"), is made and entered into this 20TH day of July, 2005, by and between the CITY OF PALM SPRINGS, a municipal corporation, ("City") and Dick Taylor Productions„ Inc, a California corporation, ("Producer"). The parties hereto agree as follows: 1.0 SERVICES OF PRODUCER 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,the Producer shall provide those services specified in the"Scope of Services"attached hereto as Exhibit"A"and incorporated herein by this reference,which services may be referred to in this Agreement as "services" or "work." As a material inducement to the City entering into this Agreement, Producer represents and warrants that Producer is a provider of first class services and Producer is experienced in performing the services contemplated in this Agreement and, in light of such status and experience, Producer covenants that it shall follow the highest professional standards in performing the required under this Agreement. For purposes of this Agreement,the phrase"highest professional standards"shall mean those standards of practice recognized by one or more first-class production companies producing cirque style performances in an exciting presentation. 1.2 Producer's Proposal. The Scope of Service is described in Exhibit"A"to this Agreement. The services to be performed underthis Agreement generally include the completion of appropriate site preparation, the construction of a theatrical tent structure ("Theater")that will seat approximately 1,000 persons, and the producing and presentation of at least eight (8) theatrical productions per week during the Principal Season,'suitable for family entertainment,on the Site. For the purposes of this Agreement, the term "Principal Season" means the period of time between November and May and the term"Site"means the southwest side of the Desert Fashion Plaza. In the event of any inconsistency between the terms of such proposal and this Agreement,the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered under this agreement shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses Permits Fees and Assessments. Except as otherwise expressly provided in this Agreement, Producer shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement and the installation or construction of any improvements as may be required or desirable for the provision of such services, Producer shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest,which may be imposed by law . pAVILLION THEATER AGREEMENT 2D DRAFT 2 and arise from or are necessary for the Producer's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Land Use Entitlements. Producer shall be responsible forapplying for and securing all appropriate land use permits and entitlements, including, but not limited to an environmental assessment(including an initial study),grading permits,a conditional use permit,and building permits.The City will waive the normal processing fees associated with review and approval of such environmental review, grading permits, conditional use permit and building permits. 1.6 Familiarity with Services. By executing this Contract, Producer warrants that Producer(a)has thoroughly investigated and considered the scope of services to be performed,(b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. Producer warrants that Producer has orwill investigate the Site and is orwill be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Producer discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Producer shall immediately inform the City of such fact and shall not proceed except at Producer's risk until written instructions are received from the Contract Officer, 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Public Benefits. Producer is proposing to produce and stage events that will attract and draw persons to the City's downtown area,thereby increasing opportunities for additional sales of merchandise, meals, and rooms, resulting in increased sales taxes and transient occupancy taxes to the City. City finds and acknowledges that these efforts of Producer constitutes a sufficient public purpose to justify the making of the loan pursuant to the terms as provided in this Agreement. 2.0 ADVANCE OF FUNDS 2.1 Advance Toward Costs. For the services rendered pursuant to this Agreement, the City shall loan and advance funds to Producer in a total amount up to Three Hundred Thousand Dollars ($300,000.00) for the purpose of assisting the Producer finance necessary upfront and continuing costs associated with the planning, staging, marketing, and promoting of the services. The City's advances pursuant to this Agreement shall be made after Producer delivers a copy of a lease, license, or other document evidencing a right to occupy and use the Site and after approval of all land use entitlements as identified in Section 1.5 of this Agreement. The principle amount of the loan shall be repaid before or at the termination of the Agreement as identified in Section 3.3 below P'AVILLION THEATER AGREEMENT 2D DRAFT 3 2.2 Method of Reimbursement. The City's advances under Section 2.1 of this Agreement shall be reimbursed to the City at the rate of at least one dollar ($1.00) for each admission to any production, show, or event of any kind conducted or presented at the Theater. 2.3 Interest. In recognition of the public benefits associated with this Agreement, and in addition to the City's willingness to waive normal processing fees for land use entitlements as provided in Section 1.5,the City agrees to forego interest on the principle amount of the loan so long as the Producer is performing the services as provided in this Agreement. In the event of any default, producer shall pay interest at the rate of 10% per annum on any outstanding amounts due and payable to the City commencing on the thirty-first day after termination of this Agreement as provided in Section 3.3 below. 2.4 Securit , Producer's obligations under this Agreement shall be secured by a letter of credit acceptable to the City Manager and in a form acceptable to the City Attorney delivered to the City prior to or at the time Producer requests payment of any portion of the loan of funds as described in Section 2.1 above. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Producer shall commence the services pursuant to this Agreement upon City Council approval of this Agreement. 3.3 Term, The term of this Agreement shall commence on July 20, 2005 and continue in full force and effect for a period of three(3)years. In the event producer fails to provide the services required under this Agreement, the City may give notice to the Producer that the Producer is in default and demand that the Producer cure the default. In the event the Producer fails to cure the default within ten (10) days of the receipt of the notice of default, this Agreement shall be deemed terminated and producer shall pay the City any outstanding principle amount ofthe Doan. 4.0 COORDINATION OF WORK 4.1 Representative of Producer. The following principals of Producer are hereby designated as being the principals and representatives of Producer authorized to act in its behalf with respect to the work specified herein and make all decisions in conrection therewith: It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Producer and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Producer without the express written approval of City. PAVILLION THEATER AGREEMENT 2D DRAFT 4 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Producer's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Producer shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Producer, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Producer shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein maybe transferred, assigned,conveyed, hypothecated or encumbered voluntarily or by operation of law,whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Producer, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Producer or any surety of Producer of any liability hereunder without the express consent of City. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Producer, 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 Producer's employees, servants, representatives or ;agents, or in fixing their number, compensation or hours of service. Producer shall perform all ;services required herein as an independent Producer of City and shall remain at all times as to City a wholly independent Producer with only such obligations as are consistent with that role. Producer shall not at anytime 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 Producer in its business or otherwise or a joint venturer or a member of any joint enterprise with Producer. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Producer shall procure and maintain,at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent Producers, broad form property damage, products and completed operations. PAVILLION THEATER AGREEMENT 2D DRAFT _ 5 (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. All of the above policies of insurance shall be primary insurance. (Reference Section 5.3 regarding sufficiency.) The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Producer shall, prior to the cancellation date,submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Producer has provided the City with Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance,endorsements,or binders are approved by the City. The Producer agrees that the provisions of this Section 5.1 shall not be construed as limiting in anywaythe extent to which the Producer may be held responsible for the payment of damages to any persons or property resulting from the Producer's activities or the activities of any person or person for which the Producer is otherwise responsible. In the event the Producer subcontracts any portion of the work in compliance with Section 4,3 of this Agreement the contract between the Producer and such subcontractor shall require the subcontractor to maintain the same polices of insurancethat the Producer is required to maintain pursuant to this Section. 5.2 Indemnification. Producer agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions,suits,claims,damages to persons or property,losses, costs,penalties,obligations,errors, omissions or liabilities, (herein"claims or liabilities")that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work,operations or activities of Producer, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Producer hereunder, or arising from Producer's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement,whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees 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) Producer will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; PAVILLION THEATER AGREEMENT 2D DRAFT 6 (b) Producer will promptly pay anyjudgment rendered against the City,its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Producer hereunder; and Producer agrees to save and hold the City, its officers, agents, and employees harmless therefrom; and (c) In the event the City,its officers,agents or employees is made a party to any action or proceeding filed or prosecuted against Producerfor 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 Producer hereunder, Producer agrees to pay ,to the City,its officers,agents or employees,any and all costs and expenses incurred by the City, its officers,agents oremployees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated"A"or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City ("City Manager")due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Producer agrees that the minimum limits of the insurance policies and the (performance bond required by this Section 5 may be changed accordingly upon receipt ofwritten notice from the City Manager or designee; provided that the Producer shall have the right to appeal a determination of increased coverage by the City Managerto the City Council of Citywithin ten(10) days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports. Producer shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement or as the Contract Officer shall require., including the production of records demonstrating admissions and attendance at events, shows, or any other production at the Theater and accounting of the repayment amounts as specified in Section 2.2 of this Agreement 6.2 Records. Producer shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services requiredby 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. P'AVILLION THEATER AGREEMENT 2D DRAFT 7 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California,or any other appropriate court in such county, and Producer covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days ofservice of such notice and completes the cure of such default within forty-five (45) days after service of thenotice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Producer's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Waiver. No delay or omission in the exercise of any right or remedy bya 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. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity,to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7T6 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement,the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees P'A VILLION THEATER AGREEMENT ZD DRAFT 8 shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Producer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Producer or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, director indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation,partnership or association in which he is, directly or indirectly,interested, in violation of any State statute or regulation. The Producer warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Producer covenants that, by and for itself, its heirs,executors,assigns, and all persons claiming under or through them,that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion,sex, marital status, national origin, or ancestry in the performance of this Agreement. Producer shall take affirmative action to insurethat 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. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer,CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Producer,to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated -it the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 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 all previous negotiations, arrangements,agreements and understandings, if any,between FAVILLION THEATER AGREEMENT 2D DRAFT 9 the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii)by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. - - - CITY OF PALM SPRINGS ATTEST: a municipal corporation y. _ (;fiy,Clerk Zhu City Manager APPROVED BY CITY COUNCIL APPROVED AS T FORM: i By: �✓ City Attorn P'AVILLION TAEATER AGREEMENT 2D DRAFT 10 PRODUCER: Check one:_,Individual_PartnershipXCorporation Corporations require two notarized signatures: One from each of the following: A. Chairman of Board,President,or any Vice President: AND B.Secre ry;Assistant SecretaryyTreasurer,Assistant Treasurer,or Chief Financial Officer). �By : C, L — By: Signature(notariz d) Signature(notarized) Name: Jn I C4410 W. 7)4YLo� Name: Title: PP S/l7GI/7— Title: ,Address: J70 A P,#Z 1 0,A-rVYb1-J Address: t'A'u, cS'PPUMr S, CA 9vY6y p^ State of State of Cal ifo7'Yl1ca. County of ss County of k i 4f W— i[l,�-' ss F gnl, N, `'before me,Sa•rr-a� 'l.c�F 1 On before me, personaly, appeared personally appeared pawomallTknown personally known to me (or proved to me on the basis of te-me(erproved to me on the basis f satisfactory evidence)to satisfactoryevidence)lobe the person(s)whose name(s)is/are be the person(4 whose namely$is1A su scribedto the within subscribed to the within instrument and acknowledged to me that instrumentan acknowledged to me that6shel"executed helshelthey executed the same in his/hedtheir authorized t e same i liis herRheir authorized capacity(�and that by capaclty(les), and that by his/her/their signature(s) on the liis hebd hair signatureKon the instrumentthe personA or the instrument the person(s),or the entity upon behalf of which the entity upon behalf of which the personi4acted,executed the person(s)acted,executed the instrument. instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary �� Notary Signature: r�1iiL�, �Gy Signature: Notary Seal: Notary Seal: R sue SARRAN K.WALTON ^"�" ' Commission#1532125 ¢ , Notary Public-California Son Bernardino County IT ^' "My Comm.Expires Dec 5,2008 PAVILLION THEATER AGREEMENT 2D DRAFT PDI(;K TA I pOR 170 N. Palm Canyon #B • Palm Springs, CA 92262 760,416,2450 • 760.416.1340 fax Exhibit "A" Palm Springs Pavilion Theatre 'The Palm Springs Pavilion Theatre is a concept by Dick Taylor Productions, Inc. The project will be located in the heart of Palm Springs, providing "live" family oriented entertainment on a year round basis to local citizens and visitors alike. In recent years the Palm Springs downtown shopping area has fallen on difficult times. Stores have closed and complaints have been raised that there is just not enough going on to attract shoppers and visitors to this City area. We are bringing something exciting in entertainment that will help revitalize downtown and compliment the Arts & Entertainment aspect of Palm Springs. The Palm Springs Pavilion Theatre, scheduled to open in late November or December 2005, will be located at the Desert Fashion Plaza directly across the street from the Palm Springs Art Museum. The Theatre will take over space currently occupied by one of the original Desert Fashion Plaza buildings, which will be taken down and completely cleared. In its place we will erect a magnificent Pavilion tent structure, which will become a 1,000-seat theatre. The Pavilion will be 185' long 110' wide and some 50' tall. With beautiful lighting and other visual effects, it will be an attractive addition to the downtown area. The sound-proofed structure with air conditioning and heating will have a sense of 1950's styling to it. Inside the Pavilion,the shows will be spectacular Cirque-style presentations featuring acrobats,jugglers, high-flying artists, dancers and some of the most unusual performers audiences have ever seen. It's entertainment for the whole family with eight to nine performances a week. Dick Taylor Productions has worked closely with Wessman Development Company to secure the property for the Theatre. We will work with the City of Palm Springs in all aspects of approvals to move forward on this project to assure it meets all necessary requirements. Our goal is to be open in late November or December of 2005. The Palm Springs Pavilion Theatre will have an extensive marketing, advertising and public relations program to support it. We will be working with local retailers, restaurants and hotels to provide special cooperative packages to encourage visitors and locals to extend their time when corning into Palm Springs to see our show. We have begun conversations with the Palm Springs Pint Museum for cooperative programs and hope to do the same with the Fabulous Palm Springs Follies. The potential of the Palm Springs Pavilion Theatre is substantial for the downtown area. With sell-out audiences, we will deliver 8,000 to 9,000 people per week shopping, dining and visiting Palm Springs; at 70% capacity we will deliver around 6,000!