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HomeMy WebLinkAbout6/15/2005 - STAFF REPORTS (7) CC . NC } ��>OgAtE�`A �* FOR ` City Council Staff Report DATE: June 15, 2005 CONSENT SUBJECT: PROPOSED TEN-MONTH LEASE AGREEMENTS WITH EVA'S AT THE PALM SPRINGS INTERNATIONAL AIRPORT FROM: David H. Ready, City Manager BY: Department of Aviation SUMMARY The requested action would allow Eva's at Palm Springs International Airport to continue operation of two "Retail Cart" concessions at Palm Springs International Airport for a period of ten (10) months beginning September 15, 2005. RECOMMENDATION: 1. Approve Minute Order No. _, approving lease agreements between the City of Palm Springs and Eva's at Palm Springs International Airport, in a form acceptable to the City Attorney, for the operation of two (2) retail merchandise units ("Retail Carts") for a period of ten (10) months subject ; and 2. Authorize the City Manager to execute all necessary documents. STAFF ANALYSIS: This action will allow Eva's at Palm Springs International Airport to continue to operate two "Retail Carts" during the initial period of construction for the new screening checkpoint. At its December 4, 2002 meeting, the Airport Commission recommended City Council approval of purchase for four (4) "Retail Carts". From input originally received from the cart manufacturer and from other retail cart operators, average monthly cart rentals generally ranged from $800 - $1,200 per month depending on the items sold. Airport staff concluded that $1,000 per month per cart or $12,000 a year would be a fair and reasonable rental amount. At that time, it was decided to offer an added incentive if an operator decided to lease and operate two or more carts. In this case, the monthly rental would be reduced to $833.33 per month per cart or $10,000 per year per cart. Item No. 2. D. June 15, 2005 -- Page 2 Retail Merchandise Units Subsequent to the expiration of their previous agreement, Eva's has been operating two carts under these terms since September 15, 2003 . The term of each agreement was for one year with a one year renewal option. There are no further extension options available under the existing agreement. Therefore, staff proposes that new retail cart agreements be awarded for a period of ten (10) months. This time period would allow Eva's to continue the operation of two retail carts through the next season. The area in which the carts are located is scheduled for demolition at that time. The lease agreements are attached and are subject to a final form acceptable to the City Attorney. FISCAL IMPACT: This proposal will result in an income to the Airport of $16,666.60 over the ten-month period of September 15, 2005 through July 15, 2006. Richard S. Walsh, A.A.E., Director of Aviation David H. Ready, City Meer Attachments: Minute Order Agreements NON-EXCLUSIVE OPERATING PERMIT AGREEMENT For Retail Cart #1 At Palm Springs International Airport GENERAL PROVISIONS The City of Palm Springs, a municipal corporation ("City') hereby grants to the Operator hereinafter named, a non-exclusive permit to operate a Retail Cart (as hereinafter defined) at the location specified below at the Palm Springs International Airport ("Airport") upon all of the terms and conditions contained in this Agreement. This Agreement is subject to the following general provisions: Operator: Eva's at Palm Springs Airport Address: 1675 La Rinna Way#A Palm Springs, CA 92264 Phone: 760.320.9088 / 760.668.4455 Fax: 760.327.4127 email: evaspsairport@aol.com Operator's Representative: Eva K. Karlstrom Retail Cart Use: Apparel and Gift items Security Deposit: $1,000.00 (on file). Annual Rental Payment: $ 8,333.30 Partial Month Rental Payment: $ 416.66 (Due on September 15, 2005) Monthly Rental Payment: $ 833.33 (Due on the first of each month for that month) Partial Month Rental Payment: $ 416.66 (Due on July 1, 2006) Commencement Date: September 15, 2005 Term: Ten (10) months with no renewal options. City Business License #: 00012108 Hours of Operations: During the Months of September through June, the Retail Cart shall remain open a minimum of 6 hours per day, beginning at 5:30 a.m., 7 days a week except during periods of extreme weather conditions. During the month of July, the Retail Cart may remain open at the discretion of the Operator. Retail Cart Identification & Location: Retail Cart#1 Location: As shown on Exhibit "A" 1003/022/25962 v1 Palm Springs International Airport Retail Cart Agreement TERMS & CONDITIONS 1. The term "Retail Cart" shall mean a portable concession cart for the sale of services / merchandise licensed to the Operator pursuant to this Agreement. 2. The Operator shall provide the Executive Director—Airports monthly gross sales statistics in a form and content satisfactory to the City by the 10th day of each month for the previous month. 3. The Retail Cart may not be moved or relocated to any other location or area of the Airport by the Operator. City may require the Retail Cart to be relocated based upon Airport operational needs at any time. 4. The initial list of merchandise and services including prices to be displayed or offered on or from the Retail Cart, and any subsequent changes to the list of merchandise or services and prices offered must be approved by the Executive Director—Airports in writing. Any proposed changes to prices,other than sale prices, seasonal inventory reduction and adjustments made as a result of new original designs must be first reviewed and approved in writing by the Executive Director—Airports. 5. Additional space adjacent to the Retail Cart may not be used for any purpose without advance written approval from the Executive Director—Airports. 6. Operator will not change hours or days of operation specified herein without prior written approval from the Executive Director — Airports except during periods of extreme weather conditions. 7. The Operator shall be solely responsible for all merchandise displayed on the Retail Cart. The Operator shall be solely responsible for properly securing the Retail Cart and all items stored in the Retail Cart. 8. No changes or alterations shall be made to the Retail Cart, including physical appearance or operational qualities of the Retail Cart without prior written approval from the Executive Director—Airports. 9. The Operator shall keep the Retail Cart in excellent physical and operating condition during the Agreement term. The Operator shall inspect the Retail Cart on a daily basis with respect to its cleanliness, operation, physical appearance, and function. If repairs or maintenance are necessary, Operator shall immediately advise the Airport Operations Center. The Operator shall be responsible for the cost of all maintenance and repairs to damage to the Retail Cart as a result of negligence on the part of the Operator, its employees or agents. 10. The operations of the Operator, its employees, invitees and those doing business with it shall be conducted in a professional, orderly and proper manner so as not to annoy, disturb or be offensive to others at the Airport. The City shall have the right to object to the Operator regarding the demeanor, conduct and appearance of the Operator's employees, invitees and those doing business with it, whereupon the Operator will take steps necessary to remove the cause of the objection. 11. Per Title 49, Code of Federal Regulations (CFR), Part 1542 every Sterile Area Worker (SAW) must have successfully completed a fingerprint-based Criminal History Records Check (CHRC). 12. In the use of the parkways, roads, streets, corridors, hallways, stairs and other common areas of the Airport as a means of ingress and egress to, from and about the Airport, and also in the use of portions of the Airport to which the general public is admitted, the Operator shall conform and shall require its employees, invitees and others doing business with it to conform to the Rules and Regulations of the Airport which are now in effect or which may hereafter be adopted for the safe and efficient operation of the Airport. A copy of the Rules and Regulations 1003/022/25962 v1 1 u�' Palm Springs International Airport Retail Cart Agreement is on file with the Airport Administrative office. Operator acknowledges that it is familiar with such Rules and Regulations as they apply to its operations under this Agreement. 13. The Operator, its employees, invitees and others doing business with it shall have no right hereunder to park vehicles at the Airport Terminal. Parking is via permit only in the Employee Parking Lot. Parking forthe loading/unloading of merchandise must be coordinated through the Airport Ground Transportation Center. 14. The Operator agrees to operate its business as a commercial operator at the Airport for the use and benefit of the public; to make available all facilities and services to the public, without unjust discrimination; and to refrain from imposing or levying excessive,discriminatory, or otherwise unreasonable charges or fees. 15. The Operator shall maintain during the term of the Agreement comprehensive general liability insurance in a form and content satisfactory to the City written on a per occurrence basis in an amount not less than $100,000 per person, $300,000 per occurrence, $50,000 property damage or a combined single limit of$300,000. Said policy shall name the City and its officers, agents and employees as additional insureds. The Operator shall deliver certificates of insurance evidencing the coverage required herein. 16. The Operator shall maintain fire and extended coverage insurance written on a per occurrence basis on its improvements appurtenances, alterations, trade fixtures, equipment, personal property and inventory within the Retail Cart from loss or damage to the extent of their full replacement value. Operator shall have the right to self-insure the items so long as Operator maintains a net worth satisfactory to the City. The City may require n et worth documentation up to and including an audited financial statement. 17. The Operator shall maintain a policy of worker's compensation insurance in an amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Operator and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Operator in the course of conducting Operator's business at the Retail Cart. 18. All of the policies of insurance required to be procured by Operator pursuant to the Terms and Conditions herein shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurers shall waive all rights of contribution they may have against the City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing 30 days prior written notice by certified mail to the City. Prior to the effective date of this Agreement and at least 30 days prior to the expiration of any insurance policy, Operator shall provide City with certificates of i nsurance or appropriate insurance binders evidencing the above insurance coverages written by insurance companies acceptable to City, licensed to do business in the state where the Retail Cart is located and rated A:VII or better by Best's Insurance Guide. In the event the City determines that (i) the Operator's activities at the Retail Cart create an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Operator agrees that the minimum limits of any insurance policy required to be obtained by Operator may be changed accordingly upon receipt of written notice from the City; provided that Operator shall have the right to appeal a determination of increased coverage by the City to the City Council of City within ten (10)days of receipt of notice from the City. 19. The Operator, as a material part of the consideration to be rendered to City under this Agreement, hereby waives all claims against City for damages to equipment or other personal property, trade fixtures, or improvements in, upon or about the Retail Cart and for injuries to persons in or about the Retail Cart from any cause arising at any time. The Operator agrees to indemnify the City, its officers, agents and employees against, and will hold each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, 1003/022/25962 v1 Palm Springs International Airport Retail Cart Agreement costs, penalties, obligations, errors, omissions or liabilities that may be asserted or claimed by any person, firm or entity arising out of in connection with the negligent performance of the work, operations, or activities of Operator, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Retail Cart by Operator, its employees, agents or customers, or arising from the failure of Operator to keep the Retail Cart in good condition and repair, as herein provided, or arising from the negligent acts or omissions of Operator hereunder,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) Operatorwill 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 attorney fees incurred in connection therewith; (b) Operator 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 Operator hereunder; and Operator agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are made a party to any action or proceeding filed or prosecuted against Operator 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 Operator hereunder, Operator 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 attorney fees. 20. The parties hereto agree that the State of California is the proper jurisdiction for litigation of any matters relating to this Agreement. The parties further agree that Riverside County, California is the proper place for venue as to any such litigation and Operator agrees to submit to the personal jurisdiction of such court in the event of such litigation. 21. The Operator for itself, its successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree. The Operator shall not discriminate on the basis of race, color, national origin,or sex in the performance of this contract. The Operator shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-FAA- AIP assisted contracts. Failure by the Operator to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the City deems appropriate. 22. Any notice given under the provisions of the Agreements shall be in writing and shall be delivered personally or sent by certified or registered mail, postage prepaid addressed to Operator at the address set forth on page 1 of this Agreement and the City as follows: Executive Director—Airports Palm Springs International Airport 3400 E. Tahquitz Canyon Way, Suite OFC. Palm Springs, CA 92262 23. The Operator shall promptly repair or replace any property of the Airport damaged by the Operator's operations hereunder. The Operator shall not install any fixtures or make any alterations or improvements in or additions or repairs to the Retail Cart or any property of the Airport except with prior written approval of the Executive Director—Airports. 24. The City shall have the right at any time and as often as it may consider it necessary to inspect the Operator's operations or services being rendered, any activities or operations of the Operator hereunder. Upon request of the City, the Operator shall operate or demonstrate any displays owned by or in the possession of the Operator at the Airport or to be placed or brought on the Airport premises, and shall demonstrate any process or other activity being carried on by the Operator hereunder at the Airport. Upon notification of the City of any deficiency in any 00 ,7 1003/022/25962 v1 Palm Springs International Airport Retail Cart Agreement operation, the Operator shall immediately correct the deficiency or withdraw the machine or piece of equipment from service, and provide a satisfactory substitute. 25. No signs, posters or similar devices shall be erected, displayed or maintained by the Operator in view of the general public without advance written approval of the Executive Director — Airports. A ny u napproved s ignage m ay b y removed b y the Airport w ithout notice at t he expense of the Operator. 26. The Operator's representative specified at page 1 of this Agreement, or such substitute as the Operator may hereafter designate in writing, shall have full authority to act for the Operator in connection with this Agreement, do any act or thing to be done hereunder, execute on behalf of the Operator any amendments or supplements to this Agreement or any extension thereof, and give and receive notices hereunder. 27. For the rights and privileges set forth herein, the Operator shall pay to the City in advance, without deduction or offset, the monthly amount shown on page 1 of this Agreement. Said amount shall be remitted to the City on the first day of each month for each month the Operator shall be operating the Retail Cart at the Airport. For any period less than a full month, the Operator's fee shall be prorated. 28. The Operator acknowledges that any payment to be paid by Operator not paid within five (5) days of its due date shall be subject to a five (5%) late charge. 29. The Operator shall provide the security deposit described on page 1 of this Agreement. Said deposit shall be paid at the time of approval of this Agreement by the City. Upon termination of the Agreement and provided that all amounts due the Airport are paid, and the Retail Cart has been returned to the Airport in the same condition as received by the Operator, subject to normal wear-and-tear and exposure to weather conditions, the deposit shall be returned to Operator. In the event fees are not paid or if the Retail Cart is damaged, City shall have the right, but not the obligation to draw upon the deposit to cover said costs. Upon the termination of the Agreement any balance of the deposit not drawn against shall be paid to the Operator. 30. Operator shall not sell or keep, used or displayed in or about the Retail Cart (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia,or other material which would be considered lewd,obscene or licentious, (b)any article which may be prohibited by standard forms of fire insurance policies, or(c)any alcoholic beverages. 31. Operator shall comply with all of the requirements of all municipal, state and federal authorities in force or which may hereafter be in force pertaining to the use of the Retail Cart and the operations of Operator at the Airport. 32. Operator shall be responsible for collection of sales tax and must possess a sales tax permit with a Palm Springs remitting address. 33. Operator agrees to pay prior to delinquency all lawful taxes and assessments which during the term hereof or any extension may become a lien or which may be levied by the state, county, city,or any other tax-levying body, upon the Retail Cart or upon any taxable interest of Operator acquired under this Agreement, or any taxable possessory interest which Operator may have in or to the Retail Cart or by reason of its occupancy thereof or operations thereon, as well as all taxable property, real or personal, owned by Operator in or about the Retail Cart. Operator specifically acknowledges that the interest granted under this Agreement may be subject to possessory interest taxes. Upon making such payments, and upon request by the City, Operator shall provide the City a copy of the paid receipts and vouchers showing such payment. With respect to assessments for improvements which are or may be payable in installments, Operator shall either pay the lump sum tax due or pay the installment portions as they become due. Even though the term of this Agreement has expired, when final determination is made of perator's share of such taxes and assessments, Operator shall immediately pay to City the amount of any additional sum owed. 1003/022/25962 v1 �`-`'l-j Palm Springs International Airport Retail Cart Agreement 34. Operator shall provide a complete and proper arrangement for the adequate sanitary handling of all trash and other refuse caused as a result of the operation of the Retail Cart and shall provide for its timely removal to the central collection point to be provided by the City. Operator shall provide and use suitable covered fireproof receptacles for all trash and other refuse on or in connection with the Retail Cart. Piling of boxes, cartons, barrels, or other similar items in view of a public area shall not be permitted. 35. In transporting merchandise, products, trash, and refuse associated with the operation of the Retail Cart to and from the Retail Cart, Operator shall use only carts, vehicles, or conveyances that are sealed and leak proof. 36. Operator shall not assign this Agreement or sublet the Retail Cart or any interest therein, without the prior written consent of the City. Any assignment or subletting without the consent of the City shall be void and constitute an incurable default hereunder. 37. The occurrence of any one or more of the following events shall constitute a default and breach of the Agreement by Operator: (a) the failure to pay any rental or other payment required hereunder to or on behalf of the City more than three (3) days after written notice from City to Operator that Operator has failed to pay rent when due; (b) the failure to perform any of Operator's obligations hereunder(exclusive of a default in the payment of money)where such default shall continue for a period of thirty (30) days after written notice thereof from City to Operator which notice shall be deemed to be the statutory notice so long as such notice complies with statutory requirements; (c)failure of Operator to operate the Retail Cart for three (3) or more consecutive days or for a total of five (5) days during any thirty (30) day period (September through June); (d)the making by Operator of a general assignment for the benefit of creditors; (e) filing by Operator of a voluntary petition in bankruptcy or the adjudication of Operator as bankrupt; (f)the appointment of a receiver to take possession of all or substantially all the assets of Operator located at the Airport or of Operator's interest in the Retail Cart; (g) the filing by any creditor of Operator of an involuntary petition in bankruptcy which is not dismissed within sixty(60) days. In the event of any such default or breach by Operator, City shall have the right at any time thereafter to elect to terminate the Agreement and Operator's right to possession hereunder. 38. O perator h ereby a cknowledges a nd a grees t hat t he A greement h erein g ranted is not a n exclusive lease and the City shall have the right to deal with and perfect arrangements with any other individual or individuals, company or corporation to engage in a like Operator activity at the Airport. In the event that nay contract granted by the city to any other like Operator shall contain any provisions more favorable to such Operator than the terms herein granted, then, at the option of Operator which option shall be exercised by providing written notice to City within thirty (30) days of the date Operator receives notice of such more favorable provision, this Agreement shall be amended to include such more favorable terms and any off-setting burdens that may be imposed on any such other like Operator. The intent of this provision is to ensure that Operator is competing on as equal of terms as possible with any additional Operator and, as a result, no other Operator shall enjoy any rights, profits or conditions more favorable to such Operator than those enjoyed by Operator. 39. The Operator, its agents and employees shall conduct and maintain a friendly, cooperative though competitive relationship with its competitors operating on the Airport. Operator shall not engage in open, notorious and public disputes, disagreements or conflicts tending to deteriorate the quality of service of its competitors or be incompatible to the best interest of the public at the Airport. The City shall have the right to resolve all such disputes, disagreements, or conflicts and its determination shall be final. 40. This Agreement covers in full each and every agreement of every kind or nature whatsoever between the parties hereto concerning this Agreement, supersedes any and all previous negotiations, agreements and understandings, if any, between the parties, oral or written, and merges all preliminary negotiations and agreements of whatsoever kind or nature herein. Operator acknowledges that City or its agents or representatives have made no representations or warranties of any kind or nature not specifically set forth herein. 1003/022/25962 v1 ()011 Palm Springs International Airport Retail Cart Agreement 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 CONTRACTOR: Check one:_Individual_Partnership_Corporation Corporations require two notarized signatures: One from each of the following: A. Chairman of Board,President,or any Vice President:AND B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer). By: By: Signature(notarized) Signature(notarized) Name: Name: Title: Title: State of q State of q County of ss County of ss On before me, On before me, personally appeared personally appeared personally known to me (or proved to me on the basis of personally known satisfactory evidence)to be the person(s)whose name(s)is/are to me(or proved to me on the basis of satisfactory evidence) subscribed to the within instrument and acknowledged to me to be the person(s)whose name(s)is/are subscribed to the that he/she/they executed the same in his/her/their authorized within instrument and acknowledged to me that he/she/they capacity(ies), and that by his/her/their signature(s) on the executed the same in his/her/their authorized capacity(ies), instrument the person(s),or the entity upon behalf of which the and that by his/her/their signature(s)on the instrument the person(s)acted,executed the instrument. person(s),or the entity upon behalf of which the person(s) acted,executed the instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary Signature: Notary Signature: Notary Seal: Notary Seal: 1003/022/25962 v1 0011 0 PALM SPRINGS REGIONAL AIRPORT RETAIL CART AGREEMENT EXHIBIT "A" RETAIL CART#1 C PLAY RETAIL CART#2 STRUCTURE GATE » , / J GATE PUTTING CONSTRUCTION FENCE : GREEN 10 JSE�CURITY c CHECKPOINT O G� NON-EXCLUSIVE OPERATING PERMIT AGREEMENT For Retail Cart#2 At Palm Springs International Airport GENERAL PROVISIONS The City of Palm Springs, a municipal corporation ("City") hereby grants to the Operator hereinafter named, a non-exclusive permit to operate a Retail Cart (as hereinafter defined) at the location specified below at the Palm Springs International Airport ("Airport") upon all of the terms and conditions contained in this Agreement. This Agreement is subject to the following general provisions: Operator: Eva's at Palm Springs Airport Address: 1675 La Rinna Way#A Palm Springs, CA 92264 Phone: 760.320.9088 / 760.668.4455 Fax: 760.327.4127 email: evaspsairport@aol.com Operator's Representative: Eva K. Karlstrom Retail Cart Use: Apparel and Gift items Security Deposit: $1,000.00 (on file). Annual Rental Payment: $ 8,333.30 Partial Month Rental Payment: $ 416.66 (Due on September 15, 2005) Monthly Rental Payment: $ 833.33 (Due on the first of each month for that month) Partial Month Rental Payment: $ 416.66 (Due on July 1, 2006) Commencement Date: September 15, 2005 Term: Ten (10) months with no renewal options. City Business License #: 00012108 Hours of Operations: During the Months of September through June, the Retail Cart shall remain open a minimum of 6 hours per day, beginning at 5:30 a.m., 7 days a week except during periods of extreme weather conditions. During the month of July, the Retail Cart may remain open at the discretion of the Operator. Retail Cart Identification & Location: Retail Cart#2 Location: As shown on Exhibit "A" 1003/022/25962 v1 Palm Springs International Airport Retail Cart Agreement TERMS & CONDITIONS 1. The term "Retail Cart' shall mean a portable concession cart for the sale of services / merchandise licensed to the Operator pursuant to this Agreement. 2. The Operator shall provide the Executive Director—Airports monthly gross sales statistics in a form and content satisfactory to the City by the 10" day of each month for the previous month. 3. The Retail Cart may not be moved or relocated to any other location or area of the Airport by the Operator. City may require the Retail Cart to be relocated based upon Airport operational needs at any time. 4. The initial list of merchandise and services including prices to be displayed or offered on or from the Retail Cart, and any subsequent changes to the list of merchandise or services and prices offered must be approved by the Executive Director—Airports in writing. Any proposed changes to prices,other than sale prices, seasonal inventory reduction and adjustments made as a result of new original designs must be first reviewed and approved in writing by the Executive Director—Airports. 5. Additional space adjacent to the Retail Cart may not be used for any purpose without advance written approval from the Executive Director—Airports. 6. Operator will not change hours or days of operation specified herein without prior written approval from the Executive Director — Airports except during periods of extreme weather conditions. 7. The Operator shall be solely responsible for all merchandise displayed on the Retail Cart. The Operator shall be solely responsible for properly securing the Retail Cart and all items stored in the Retail Cart. 8. No changes or alterations shall be made to the Retail Cart, including physical appearance or operational qualities of the Retail Cart without prior written approval from the Executive Director—Airports. 9. The Operator shall keep the Retail Cart in excellent physical and operating condition during the Agreement term. The Operator shall inspect the Retail Cart on a daily basis with respect to its cleanliness, operation, physical appearance, and function. If repairs or maintenance are necessary, Operator shall immediately advise the Airport Operations Center. The Operator shall be responsible for the cost of all maintenance and repairs to damage to the Retail Cart as a result of negligence on the part of the Operator, its employees or agents. 10. The operations of the Operator, its employees, invitees and those doing business with it shall be conducted in a professional, orderly and proper manner so as not to annoy, disturb or be offensive to others at the Airport. The City shall have the right to object to the Operator regarding the demeanor, conduct and appearance of the Operator's employees, invitees and those doing business with it,whereupon the Operator will take steps necessary to remove the cause of the objection. 11. Per Title 49, Code of Federal Regulations (CFR), Part 1542 every Sterile Area Worker (SAW) must have successfully completed a fingerprint-based Criminal History Records Check (CHRC). 12. In the use of the parkways, roads, streets, corridors, hallways, stairs and other common areas of the Airport as a means of ingress and egress to, from and about the Airport, and also in the use of portions of the Airport to which the general public is admitted, the Operator shall conform and shall require its employees, invitees and others doing business with it to conform to the Rules and Regulations of the Airport which are now in effect or which may hereafter be adopted for the safe and efficient operation of the Airport. A copy of the Rules and Regulations „! l 1003/022/25962 v1 Palm Springs International Airport Retail Cart Agreement is on file with the Airport Administrative office. Operator acknowledges that it is familiar with such Rules and Regulations as they apply to its operations under this Agreement. 13. The Operator, its employees, invitees and others doing business with it shall have no right hereunder to park vehicles at the Airport Terminal. Parking is via permit only in the Employee Parking Lot. Parking forthe loading/unloading of merchandise must be coordinated through the Airport Ground Transportation Center. 14. The Operator agrees to operate its business as a commercial operator at the Airport for the use and benefit of the public; to make available all facilities and services to the public, without unjust discrimination;and to refrain from imposing or levying excessive, discriminatory, or otherwise unreasonable charges or fees. 15. The Operator shall maintain during the term of the Agreement comprehensive general liability insurance in a form and content satisfactory to the City written on a per occurrence basis in an amount not less than $100,000 per person, $300,000 per occurrence, $50,000 property damage or a combined single limit of$300,000. Said policy shall name the City and its officers, agents and employees as additional insureds. The Operator shall deliver certificates of insurance evidencing the coverage required herein. 16. The Operator shall maintain fire and extended coverage insurance written on a per occurrence basis on its improvements appurtenances, alterations, trade fixtures, equipment, personal property and inventory within the Retail Cart from loss or damage to the extent of their full replacement value. Operator shall have the right to self-insure the items so long as Operator maintains a net worth satisfactory to the City. The City may require net worth documentation up to and including an audited financial statement. 17. The Operator shall maintain a policy of worker's compensation insurance in an amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Operator and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Operator in the course of conducting Operator's business at the Retail Cart. 18. All of the policies of insurance required to be procured by Operator pursuant to the Terms and Conditions herein shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurers shall waive all rights of contribution they may have against the City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing 30 days prior written notice by certified mail to the City. Prior to the effective date of this Agreement and at least 30 days prior to the expiration of any insurance policy, Operator shall provide City with certificates of i nsurance or appropriate i nsurance binders evidencing the above insurance coverages written by insurance companies acceptable to City, licensed to do business in the state where the Retail Cart is located and rated A:VII or better by Best's Insurance Guide. In the event the City determines that (i) the Operator's activities at the Retail Cart create an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Operator agrees that the minimum limits of any insurance policy required to be obtained by Operator may be changed accordingly upon receipt of written notice from the City; provided that Operator shall have the right to appeal a determination of increased coverage by the City to the City Council of City within ten (10) days of receipt of notice from the City. 19. The Operator, as a material part of the consideration to be rendered to City under this Agreement, hereby waives all claims against City for damages to equipment or other personal property, trade fixtures, or improvements in, upon or about the Retail Cart and for injuries to persons in or about the Retail Cart from any cause arising at any time. The Operator agrees to indemnify the City, its officers, agents and employees against, and will hold each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, 1 0 0 3102 2/2 5 9 62 v1 Palm Springs International Airport Retail Cart Agreement costs, penalties, obligations, errors, omissions or liabilities that may be asserted or claimed by any person, firm or entity arising out of in connection with the negligent performance of the work, operations, or activities of Operator, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Retail Cart by Operator, its employees, agents or customers, or arising from the failure of Operator to keep the Retail Cart in good condition and repair, as herein provided, or arising from the negligent acts or omissions of Operator hereunder,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) Operatorwill 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 attorney fees incurred in connection therewith; (b) Operator 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 Operator hereunder; and Operator agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are made a party to any action or proceeding filed or prosecuted against Operator 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 Operator hereunder, Operator 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 attorney fees. 20. The parties hereto agree that the State of California is the proper jurisdiction for litigation of any matters relating to this Agreement. The parties further agree that Riverside County, California is the proper place for venue as to any such litigation and Operator agrees to submit to the personal jurisdiction of such court in the event of such litigation. 21. The Operator for itself, its successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree. The Operator shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Operator shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-FAA- AIP assisted contracts. Failure by the Operator to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the City deems appropriate. 22. Any notice given under the provisions of the Agreements shall be in writing and shall be delivered personally or sent by certified or registered mail, postage prepaid addressed to Operator at the address set forth on page 1 of this Agreement and the City as follows: Executive Director—Airports Palm Springs International Airport 3400 E. Tahquitz Canyon Way, Suite OFC. Palm Springs, CA 92262 23. The Operator shall promptly repair or replace any property of the Airport damaged by the Operator's operations hereunder. The Operator shall not install any fixtures or make any alterations or improvements in or additions or repairs to the Retail Cart or any property of the Airport except with prior written approval of the Executive Director—Airports. 24. The City shall have the right at any time and as often as it may consider it necessary to inspect the Operator's operations or services being rendered, any activities or operations of the Operator hereunder. Upon request of the City, the Operator shall operate or demonstrate any displays owned by or in the possession of the Operator at the Airport or to be placed or brought on the Airport premises, and shall demonstrate any process or other activity being carried on by the Operator hereunder at the Airport. Upon notification of the City of any deficiency in ar@1�� s 1003/022/25962 v1 Palm Springs International Airport Retail Cart Agreement operation, the Operator shall immediately correct the deficiency or withdraw the machine or piece of equipment from service, and provide a satisfactory substitute. 25. No signs, posters or similar devices shall be erected, displayed or maintained by the Operator in view of the general public without advance written approval of the Executive Director — Airports. A ny u napproved s ignage m ay b y r emoved b y t he A irport w ithout notice a t t he expense of the Operator. 26. The Operator's representative specified at page 1 of this Agreement, or such substitute as the Operator may hereafter designate in writing, shall have full authority to act for the Operator in connection with this Agreement, do any act or thing to be done hereunder, execute on behalf of the Operator any amendments or supplements to this Agreement or any extension thereof, and give and receive notices hereunder. 27. For the rights and privileges set forth herein, the Operator shall pay to the City in advance, without deduction or offset, the monthly amount shown on page 1 of this Agreement. Said amount shall be remitted to the City on the first day of each month for each month the Operator shall be operating the Retail Cart at the Airport. For any period less than a full month, the Operator's fee shall be prorated. 28. The Operator acknowledges that any payment to be paid by Operator not paid within five (5) days of its due date shall be subject to a five (5%) late charge. 29. The Operator shall provide the security deposit described on page 1 of this Agreement. Said deposit shall be paid at the time of approval of this Agreement by the City. Upon termination of the Agreement and provided that all amounts due the Airport are paid, and the Retail Cart has been returned to the Airport in the same condition as received by the Operator, subject to normal wear-and-tear and exposure to weather conditions, the deposit shall be returned to Operator. In the event fees are not paid or if the Retail Cart is damaged, City shall have the right, but not the obligation to draw upon the deposit to cover said costs. Upon the termination of the Agreement any balance of the deposit not drawn against shall be paid to the Operator. 30. Operator shall not sell or keep, used or displayed in or about the Retail Cart (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia,or other material which would be considered lewd,obscene or licentious, (b)any article which may be prohibited by standard forms of fire insurance policies, or(c)any alcoholic beverages. 31. Operator shall comply with all of the requirements of all municipal, state and federal authorities in force or which may hereafter be in force pertaining to the use of the Retail Cart and the operations of Operator at the Airport. 32. Operator shall be responsible for collection of sales tax and must possess a sales tax permit with a Palm Springs remitting address. 33. Operator agrees to pay prior to delinquency all lawful taxes and assessments which during the term hereof or any extension may become a lien or which may be levied by the state, county, city,or any other tax-levying body, upon the Retail Cart or upon any taxable interest of Operator acquired under this Agreement, or any taxable possessory interest which Operator may have in or to the Retail Cart or by reason of its occupancy thereof or operations thereon, as well as all taxable property, real or personal, owned by Operator in or about the Retail Cart. Operator specifically acknowledges that the interest granted under this Agreement may be subject to possessory interest taxes. Upon making such payments, and upon request by the City, Operator shall provide the City a copy of the paid receipts and vouchers showing such payment. With respect to assessments for improvements which are or may be payable in installments, Operator shall either pay the lump sum tax due or pay the installment portions as they become due. Even though the term of this Agreement has expired, when final determination is made of perator's share of such taxes and assessments, Operator shall immediately pay to City the amount of any additional sum owed. 1003/022/25962 v1 i " Palm Springs International Airport Retail Cart Agreement 34. Operator shall provide a complete and proper arrangement for the adequate sanitary handling of all trash and other refuse caused as a result of the operation of the Retail Cart and shall provide for its timely removal to the central collection point to be provided by the City. Operator shall provide and use suitable covered fireproof receptacles for all trash and other refuse on or in connection with the Retail Cart. Piling of boxes, cartons, barrels, or other similar items in view of a public area shall not be permitted. 35. In transporting merchandise, products, trash, and refuse associated with the operation of the Retail Cart to and from the Retail Cart, Operator shall use only carts, vehicles, or conveyances that are sealed and leak proof. 36. Operator shall not assign this Agreement or sublet the Retail Cart or any interest therein, without the prior written consent of the City. Any assignment or subletting without the consent of the City shall be void and constitute an incurable default hereunder. 37. The occurrence of any one or more of the following events shall constitute a default and breach of the Agreement by Operator: (a) the failure to pay any rental or other payment required hereunder to or on behalf of the City more than three (3) days after written notice from City to Operator that Operator has failed to pay rent when due; (b) the failure to perform any of Operator's obligations hereunder(exclusive of a default in the payment of money)where such default shall continue for a period of thirty (30) days after written notice thereof from City to Operator which notice shall be deemed to be the statutory notice so long as such notice complies with statutory requirements; (c)failure of Operator to operate the Retail Cart for three (3) or more consecutive days or for a total of five (5) days during any thirty (30) day period (September through June); (d)the making by Operator of a general assignment for the benefit of creditors; (e) filing by Operator of a voluntary petition in bankruptcy or the adjudication of Operator as bankrupt; (f)the appointment of a receiver to take possession of all or substantially all the assets of Operator located at the Airport or of Operator's interest in the Retail Cart; (g) the filing by any creditor of Operator of an involuntary petition in bankruptcy which is not dismissed within sixty (60) days. In the event of any such default or breach by Operator, City shall have the right at any time thereafter to elect to terminate the Agreement and Operator's right to possession hereunder. 38. O perator h ereby a cknowledges a nd a grees t hat t he A greement In erein g ranted is not a n exclusive lease and the City shall have the right to deal with and perfect arrangements with any other individual or individuals, company or corporation to engage in a like Operator activity at the Airport. In the event that nay contract granted by the city to any other like Operator shall contain any provisions more favorable to such Operator than the terms herein granted, then, at the option of Operator which option shall be exercised by providing written notice to City within thirty (30) days of the date Operator receives notice of such more favorable provision, this Agreement shall be amended to include such more favorable terms and any off-setting burdens that may be imposed on any such other like Operator. The intent of this provision is to ensure that Operator is competing on as equal of terms as possible with any additional Operator and, as a result, no other Operator shall enjoy any rights, profits or conditions more favorable to such Operator than those enjoyed by Operator. 39. The Operator, its agents and employees shall conduct and maintain a friendly, cooperative though competitive relationship with its competitors operating on the Airport. Operator shall not engage in open, notorious and public disputes, disagreements or conflicts tending to deteriorate the quality of service of its competitors or be incompatible to the best interest of the public at the Airport. The City shall have the right to resolve all such disputes, disagreements, or conflicts and its determination shall be final. 40. This Agreement covers in full each and every agreement of every kind or nature whatsoever between t he p arties In ereto concerning t his A greement, s upersedes a ny a nd all'previous negotiations, agreements and understandings, if any, between the parties, oral or written, and merges all preliminary negotiations and agreements of whatsoever kind or nature herein. Operator acknowledges that City or its agents or representatives have made no representations or warranties of any kind or nature not specifically set forth herein. 1 0 0 310 22/2 5 962 v1 Palm Springs International Airport Retail Cart Agreement 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 CONTRACTOR: Check one:_Individual_Partnership_Corporation Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President,or any Vice President:AND B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer). By: By: Signature(notarized) Signature(notarized) Name: Name: Title: Title: State of A State of 11 County of ss County of ss On___before me, On before me, , personally appeared personally appeared personally known to me (or proved to me on the basis of personally known satisfactory evidence)to be the person(s)whose name(s)is/are to me(or proved to me on the basis of satisfactory evidence) subscribed to the within instrument and acknowledged to me to be the person(s)whose name(s)is/are subscribed to the that he/she/they executed the same in his/her/their authorized within instrument and acknowledged to me that he/she/they capacity(ies), and that by his/her/their signature(s) on the executed the same in his/her/their authorized capacity(ies), instrument the person(s),or the entity upon behalf of which the and that by his/her/their signature(s)on the instrument the person(s)acted,executed the instrument, person(s),or the entity upon behalf of which the person(s) acted,executed the instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary Signature: Notary Signature: Notary Seal: Notary Seal: 1003/022/25962 v1 PALM SPRINGS REGIONAL AIRPORT RETAIL CART AGREEMENT EXHIBIT "A" RETAIL CART#1 , PLAY RETAIL CART If2 , STRUCTURE 1� / GATE 1 PUTTING CONSTRUCTION FENCES GREEN 10 SECURITY GHEOKPOINT 944 qo� FS MINUTE ORDER NO. APPROVING LEASE AGREEMENTS WITH EVA'S AT PALM SPRINGS AIRPORT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, FOR THE OPERATION OF TWO RETAIL MERCHANDISE UNITS AT PALM SPRINGS INTERNATIONAL AIRPORT. I HEREBY CERTIFY that this Minute Order, approving lease agreements with Eva' s at Palm Springs Airport, in a form acceptable to the City Attorney, for the operation of two retail merchandise units at Palm Springs International Airport, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on June 15, 2005. JAMES THOMPSON City Clerk