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HomeMy WebLinkAbout7/28/2005 - STAFF REPORTS (6) PALM S.0 iy e V N x x c x RIOIIAtEO\\ % c4`'F°""�P City Council Staff Report DATE: July 20, 2005 NEW BUSINESS SUBJECT: PALM SPRINGS PAVILION THEATRE FROM: David H. Ready, City Manager SUMMARY The City Council will consider a repayable $300,000 loan agreement with Dick Taylor Productions to create and produce the downtown "Palm Springs Pavilion Theater." RECOMMENDATION: 1. Adopt Minute Order No. Approving a loan agreement with Dick Taylor Productions, subject to final approval of the City Attorney; in the amount of $300,000 at zero interest for the term of 36-months and waiving the associated development fees up to a maximum of$10,000. 2. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR FISCAL YEAR 2005-06." 3. Authorize the City Manager to execute all necessary documents to effectuate the Agreement. STAFF ANALYSIS: In an effort to continue the revitalization of our downtown, the city is interested in finding new and creative ideas which will bring people to our city's primary retail and entertainment corridor. Toward this end, the Palm Springs Pavilion Theatre is a concept created by Dick Taylor Productions. This opportunity calls for the placement of a temporary theater to be located at Desert Fashion Plaza in downtown Palm Springs near the southwest corner or the property directly across the street from the Palm Springs Art Museum. Through the cooperation of Wessman Development Company, Taylor will demolish an existing building that formerly housed retail space to locate the theatre. Work is n Item No. 5 . V . City Council Staff Report July 20, 2005 -- Page 2 Palm Springs Pavilion Theatre expected to begin in mid-August 2005. The new structure will be a pavilion tent featuring a contemporary design, housing a stage, lobby and stadium seating for an audience of 1,000. The construction of the pavilion will be subject to the city's development, planning and architectural review processes and procedures. Entertainment at the Palm Springs Pavilion Theatre will focus on cirque-style performances that will run for six to seven months. There will be eight to nine performances at the Palm Springs Pavilion Theatre each week. Both evening and matinees will be featured. The evening show will end by 8:30 pm. During the summer the Theatre will feature concerts, musicals, and other entertainment attractions making it a year round venue. Grand Opening of the Palm Springs Pavilion Theatre is anticipated to take place Thanksgiving week 2005. The Palm Springs Pavilion Theatre is a 32 month venture that is anticipated to terminate and be removed at that site in mid 2008. This is due to the anticipated final phases of Desert Fashion Plaza redevelopment. The cirque style performances at the Palm Springs Pavilion Theatre will run eighty to ninety minutes without intermission. There will be concessions sold including soft drinks and pre-packaged snacks only. Memorabilia from the show will also be available. Parking at the Palm Springs Pavilion Theatre will be provided at the Desert Fashion Plaza at both open air and underground locations. There will be a parking fee charged by Wessman Development. Tickets for the Palm Springs Pavilion Theatre will be available beginning in early October via a local box office, the internet and by phone. Dick Taylor Productions will initiate an aggressive marketing communications plan to position the Palm Springs Pavilion Theatre in the Valley beginning late September 2005. Mr. Taylor has committed to work with hotels, retailers, and restaurateurs to establish promotional opportunities. It is expected that the creation of the Palm Springs Pavilion Theater which has the ability to bring between 5,000 and 7,000 additional guests to our downtown each week could have a substantial economic impact for the downtown retailers, merchants and restaurateurs. Combined with the Fabulous Palm Springs Follies Show, which has been well received by our tourists for many years, both venues will showcase downtown as an entertainment center. FISCAL IMPACT: The cost of this agreement which is not to exceed $300,000 will be repaid as an interest free loan from Dick Taylor Productions. The justification for the no interest loan is an incentive by the city to Dick Taylor Productions who will undertake all production risks and will be required to invest substantial dollars to finalize the facility and entertainment. City Council Staff Report July 20, 2005 -- Page 3 Palm Springs Pavilion Theatre The loan will be for a term of 36 months and will be secured by Dick Taylor Productions as outlined in the contractual agreement. In addition, it is requested that Council waive development fees up to $10,000 as an additional incentive for Dick Taylor Productions to perform under the terms of the agreement. The revenue source for this loan will be a supplemental appropriation from the General Fund Balance. David H. Ready, City ' wager Attachments: Minute Order Resolution MINUTE ORDER NO. APPROVING A LOAN AGREEMENT WITH DICK TAYLOR PRODUCTIONS, SUBJECT TO FINAL APPROVAL OF THE CITY ATTORNEY; IN THE AMOUNT OF $300,000 AT ZERO INTEREST FOR A TERM OF 36-MONTHS AND WAIVING THE ASSOCIATED DEVELOPMENT FEES UP TO A MAXIMUM OF $10,000. A I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that this Minute Order approving a loan agreement with Dick Taylor Productions, subject to final approval of the City Attorney, in the amount of $300,000 at zero interest for the term of 36-months and waiving the associated development fees up to a maximum of $10,000., was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 20th day of July, 2005. James Thompson, City Clerk City of Palm Springs, California RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,AMENDING THE BUDGET FOR THE 2005-06 FISCAL YEAR WHEREAS Resolution 21283 approving the budget forthe fiscal year 2005-06 was adopted on June 8, 2005; and WHEREAS the City Manager has recommended, and the City Council desires to approve, certain amendments to said budget; NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record inter-fund cash transfers as required in accordance with this Resolution, and that Resolution 21283, adopting the budget for the 2005-06 fiscal year is hereby amended as follows: SECTION 1. ADDITIONS Fund Activity Account Amount 001 Fashion Plaza 1400-65175 $300,000 Entertainment Purpose Loan to Dick Taylor Productions to create and produce the downtown 'Palm Springs Pavilion Theater. SECTION 2. SOURCE Fund Activity Account Amount 001 Fund Balance ($300,000) Adopted this 200 day of July, 2005. David H. Ready, City Manager ATTEST: James Thompson, City Clerk Resolution No. Page 2 CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on July 20, 2005, by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California 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 Producershall 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 under this 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 atthe 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 07 � zd�05 PAVILLION TREATER AGREEMENT 2D DRAFT U .-rrE:t.A S '�- 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 forland 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 Security. 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 Attorneydelivered 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 duly 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 paythe City any outstanding principle amount ofthe loan. 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. FAVILLION 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 awned, non-owned, leased and hired cars. All of the above policies of insurance shall be primary insurance. (Reference Section 5.3 regarding sufficiency.) The insurershall 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 thatthe provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Producermay 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 7 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shalt 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 by 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 orapproval 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. 7.6 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'AVILLION THEATER AGREEMENT 2D DRAFT 9 the parties, and none shall be used to interpret this Agreement. This Agreement maybe 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 Agreementwhich 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 By: By. City Clerk City Manager APPROVED AS TO FORM: By: City Attorney PAVILLION THEATER AGREEMENT 2D DRAFT DI(;K U CCATI O�1S 170 N. Palm Canyon #B • Palm Springs, CA 92262 760,416.2450 • 760.416.1340 fax Exhibit "All 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 coming into Palm Springs to see our show. We have begun conversations with the Pahn Springs Art 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! 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 offirst 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 under this 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 atthe 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 0, 12®1®s P'AVILLION 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 for applying 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 Citywill 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 or will investigate the Site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the 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. T'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 Security. 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. Producershall 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 producerfails to provide dhe 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 paythe City any outstanding principle amount of the loan. 4.0 COORDINATION OF WCRK 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 may be transferred, assigned, conveyed,hypothecated or encumbered voluntarily or by operation of law,whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of 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 workers 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 any way the 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 any judgment rendered against the City,its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of 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 Producer 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 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 or employees 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 bythe 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 Manageror designee; provided that the Producer shall have the right to appeal a determination of increased coverage by the City Managerto the City Council of City within 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 Officershall 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 fora 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. PAVILLION 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 orthe 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 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. 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. 7.6 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 PAVILLION THEATER AGREEMENT 2D 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 Managerand to the attention ofthe Contract Officer,CITYOF 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 at 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 By: By: City Clerk City Manager APPROVED AS TO FORM: By: City Attorney PAVILLION THEATER AGREEMENT 2D DRAFT 10 PRODUCER: Check one:_Individual_Partnership_Corporation Corporations require two notarized signatures: One from each of the following:A. Chairman of Board,President,or any Vice President: AND B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer). By: By:_ Signature(notarized) Signature(notarized) Name: Name: Title: Title: Address: Address: State of State of County of as County of as On___beforeme, On before me, personally appeared personally appeared personally known personally known to me (or proved to me on the basis of to me(or proved to me on the basis of satisfactory evidence)to satisfactoryevidence)to be the person(s)whose name(s)is/are be the person(s)whose name(s)is/are subscribedto the within subscribed to the within instrumentand acknowledged tome that instrument and acknowledged to me that he/she/they executed he/she/they executed the same in his/her/their authorized the same in his/her/their authorized capacity(ies),and that by capacity(les), and that by hislher/their signature(s) on the hislher/their signatures)on the instrumentthe person(s),or the instrument the person(s),or the entity upon behalf of which the entity upon behalf of which the person(s)acted, executed the person(s)acted,executed the instrument. instrument. WITNESS my hand and officlal seal. WITNESS my hand and official seal. Notary Notary Signature: Signature: Notary Seal: Notary Seal: 1PAVILLION THEATER AGREEMENT 2D DRAFT DICK TAYLQ� PRODUCTION 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 coming into Palm Springs to see our show. We have begun conversations with the Pahn Springs Art 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!