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HomeMy WebLinkAbout2/18/2004 - STAFF REPORTS (14) DATE: February 18, 2004 TO: City Council FROM: Director, Department of Parks and Recreation LICENSE AGREEMENT WITH PALM SPRINGS POWER RECOMMENDATION: That City Council authorize the City Manager to execute a License Agreement between the City of Palm Springs and Palm Springs Power for the use of Palm Springs Stadium. SUMMARY: On August 15, 2003, Andrew Starke, the principal of Palm Springs Power, presented his proposal to the Parks and Recreation Commission to bring collegiate teams from Nevada,Arizona and California to play Palm Springs Power, the Palm Springs team, at Palm Springs Stadium. After several months of negotiation, the proposed License Agreement is being presented to City Council for its consideration and approval. BACKGROUND: Palm Springs Power (PSP), a collegiate all-star baseball team and part of the newly-formed Pacific Southwest League, is proposing to enter into a one-year License Agreement for the use of Palm Springs Stadium for approximately 40 home games and the conference tournament hosted by the team during the league's season. The regular season begins the week after Memorial Day and runs through the last week of July, just prior to the National Baseball Congress tournament that starts the first week of August. PSP will play other collegiate teams from Nevada, Arizona and California, with players coming from throughout the United States. Players will be selected by Andrew Starke,the principal of PSP, and a manager and they will seek the advice of other league coaches to select and evaluate the players. Mr. Starke has been involved in collegiate team organizations for several years and chose Palm Springs to start PSP because of the Coachella Valley's population and the availability of Palm Springs Stadium for PSP's season. His mission is to create and build an organization in Palm Springs that can become a part of the community for many years. It will also provide collegiate baseball players with an opportunity to compete in highly competitive baseball games during the summer months in front of Division I collegiate baseball coaches and professional baseball scouts. In doing this, he is optimistic that the organization will become a successful and profitable business in and for Palm Springs. In addition to providing entertainment for the entire valley population, Mr. Starke plans to offer a week-long instructional camp targeted at local youth baseball enthusiasts atthe stadium, possibly as an extension to the City's existing Summer Camp Program. LICENSE AGREEMENT WITH PALM SPRINGS POWER DATE: February 18, 2004 PAGE: Two On August 15, 2003, Mr. Starke made his presentation to the Parks and Recreation Commission.After discussion, a motion was passed unanimously(7/0) to recommend that City Council authorize the City Manager to execute a License Agreement between the City and PSP for the use of Palm Springs Stadium. Following are highlights of the proposed License Agreement: 1. Term: One-year agreement commencing March 1, 2004. 2. PSP ("Licensee")shall have exclusive use of the stadium offices during the agreement's term, except that the City may grant third parties using the stadium the right to use the box office located in the offices on days that Licensee is not hosting a game or tournament. 3. With the exception of the City's Fourth of July event, Licensee shall have exclusive use of the entire stadium for approximately 40 home games and all tournaments, commencing at 6:00 a.m. on the day of such game or tournament and ending three hours afterthe completion of such home game or the last game of the day during a tournament. 4. Licensee shall have exclusive use of the stadium's locker rooms commencing with the first home game and ending with the last home game or tournament hosted by PSP, whichever is later. 5. Within five days of the last season home game (including any tournament hosted by PSP), Licensee shall vacate all stadium areas except for the locker rooms, offices and concession areas. 6. Licensee's schedule shall take precedence in all scheduling of the stadium, but the City shall have the right to grant third parties the use of all or any part of the stadium when no conflict will exist. 7. On the days of each home or tournament game, Licensee shall be responsible for turning on and off the field lights prior to and after the game; procuring parking attendants and adequate security personnel for each game, as deemed necessary by the City; and ensuring that all trash cans at the stadium are emptied and all litter collected after each game. 8. Licensee shall have exclusive right to operate all novelty, program, refreshment and concession facilities in the stadium during home and tournament games, but the City will retain concessions for City-sponsored events. 9. Discounted admission prices forchildren under 12, students and adults over 65 years of age will be provided. 10. Licensee shall have exclusive right to place advertising signs on the stadium's outfield fence from March 1 through December 31 and receive all revenue from such advertising. All such advertising and the locations shall be approved by the City. t �� LICENSE AGREEMENT WITH PALM SPRINGS POWER DATE: February 18, 2004 PAGE: Three 11. Licensee shall promote the stadium and its team in consultation with the City's Department of Tourism. The City shall be positioned as "Presenting Sponsor" in all advertising and referenced in all paid media, publications and signs. 12. PSP will maintain a promotional website for the team and recognize the City as the "presenting sponsor" on that website and supply an internet hyper- link to the City's website. 13. Licensee is responsible for maintaining the stadium to adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair. 14. The City shall mow, water, seed and otherwise maintain the stadium's playing field and provide utilities, including water, gas and electricity. 15. Licensee shall not make any alterations to the stadium without the City's prior written consent. 16. The City reserves the right to prohibit the sale of any item at the concession stand; vending machines are prohibited; the sale of tobacco, gum and all other items that create safety or litter problems, as the City determines, are prohibited; and the sale of any item which is contained in glass or a metal container is prohibited. 17. Licensee shall pay a fixed rental of $175 ($100 for use and $75 for electricity) for each home date and day of tournament play. 18. Licensee shall pay City a $1,000 security deposit, refundable to Licensee at the end of the agreement's term if Licensee has complied with each and every term, covenant and condition of the agreement. 19. Should Licensee's paid attendance exceed 750 people for any home game ortournament play day, Licensee shall pay the City an amount equal to 25% of the amount of the total gate receipts for that day. The proposed License Agreement with PSP is below market rate; however, all hard costs for stadium maintenance and utilities are covered through the fixed rental of$175 per game. This provides revenue to the City that otherwise would not be generated during the summer months. Staff believes that the promotional value of being the "presenting sponsor" of the Palm Springs Power baseball team through all team advertising, game-day promotions, souvenirs and the public exposure of the team on a regional basis is adequate to justify the reduced rental rate. The remaining five league teams are located in Orange County, CA; Phoenix, AZ; Lake Havasu, AZ; and two from Las Vegas, NV. These locations provide additional exposure to the City as the PSP competes and, hopefully, wins in these areas as the team travels. Also, non- conference games will be played in San Diego, Ontario, Irvine, Santa Barbara and �/�� LICENSE AGREEMENT WITH PALM SPRINGS POWER DATE: February 18, 2004 PAGE: Four Dominguez Hills by PSP during the season and the team will also travel to Wichita, KS. By hosting the conference tournament in July, all five league teams from Southern California, Arizona and Nevada will travel to Palm Springs to compete overfourdays.Traveling with the visiting ballplayers will be team-support staff, family and friends. During the tournament and throughout the season,these individuals and family and friends of team players will be staying in local hotels and become exposed to the tourism opportunities of Palm Springs during their stay. The calculated revenue recovery to the City of Palm Springs through the reimbursement of actual operating costs for the season is$5,600, based upon the fixed rental rate for the 40-game season. At this time, it is unknown if the popularity of the team will generate additional revenue through the percentage of gross gate receipts revenue sharing clause in the agreement. Staff believes the proposed agreement provides the best incentive to the team owner to grow the team's popularity by not extracting revenue from gate receipts or concessions early on in the formation of both the team and the league. Additionally, recovering the City's cost of operations for stadium maintenance during the summer creates some positive cash flow for the City at an otherwise slow time of year. S TT MIKESELL, Director epartment of Parks and Recreation APPROVED: ✓C� City Manager ATTACHMENTS: 1. License Agreement 2. Minute Order LICENSE AGREEMENT (Palm Springs Stadium) THIS LICENSE AGREEMENT (herein "Agreement") is made and entered into this day of 12004, by and between the CITY OF PALM SPRINGS, a municipal corporation (herein "City") and PALM SPRINGS POWER, a California corporation (herein "Licensee"). The parties hereto agree as follows: 1. LICENSE 1.1 Grant of License. The City hereby grants to Licensee a non-exclusive license ("License") to use the following portions of the Palm Springs Stadium located at 1901 East Baristo, Palm Springs, California ("Stadium") subject to the terms and conditions more particularly set forth herein: (a) Licensee shall have the exclusive use of the offices located at the Stadium during the term of this Agreement, except the City may grant third parties utilizing the Stadium the right to use the box office located in the offices on days that Licensee is not hosting "Home Gaines" or a tournament. (b) Subject only to the City's Fourth of July event, Licensee shall have the exclusive use of the entire Stadium for its approximately forty (40) Home Games of the Collegiate All-Star baseball team owned by Licensee, to be known as the Palm Springs Power, ("Tearn") during the baseball season for the Pacific Southwest League ("Season"), plus all tournaments hosted by the Team, commencing at 6:00 a.m. on the date of such Home Game or tournament and ending three (3) hours after the completion of each Home Game or, for a tournament, last game of the day. Licensee shall notify the City as soon as practicable of the dates of the Home Games for the Team and any tournaments to be hosted by the Team, but not later than April 1. (c) For the period commencing with the first Home Game and ending with the last Home Game of the Team or tournament to be hosted by the Team, whichever is later, Licensee shall have the exclusive right to use the locker rooms located at the Stadirun. (d) During the term of this Agreement, Licensee shall remain a member in good standing of the Pacific Southwest League. Within five (5) days of the last Home Game of the Season (including any tournament hosted by the Home Team), Licensee shall vacate and surrender all areas of the Stadium, except for the locker rooms, offices and concession areas. Licensee's schedule shall take precedence in all scheduling of the Stadirun. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this License and Licensee agrees to cooperate and coordinate with City for use of the Stadium by community and youth organizations during the baseball season. City shall give Licensee notice of other events to be conducted at the Stadium within seventy-hours (72) of booking such an event. h 1003/00128671.02 1 1.2 Use. Licensee shall exercise this License solely for the management of the Team, the playing of Home Games by the Team, the hosting of tournaments by the Team and the sale of concessions during Home Games. On the date of each Home Game or tournament game, Licensee shall be responsible for turning on and off the field lights prior to and after the game. In addition, Licensee shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. Similarly, each game, Licensee shall be responsible to ensure that all trash cans at the Stadium are emptied and that all litter has been collected. Licensee shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for which the Stadium is hereby licensed to Licensee. In addition, this Agreement does not permit Licensee to use the practice field. However, Licensee may apply to the City to use the Stadium or the practice field for other baseball-related events through the City's standard Facility Use Application process. Licensee shall not sell or permit to be kept, used, displayed or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies, or (b) any alcoholic beverages unless expressly approved in advance by the City. Licensee shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, use of the concession stand and concession stand equipment. Licensee shall be responsible for the control and safety of its staff, members and guests while Licensee, its staff, members and guests use the Stadium. Licensee shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at Licensee's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by Licensee. The term "environmental law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the enviromnental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term "hazardous material" includes, without limitation, any material or substance that is (i) defined or listed as a"hazardous waste," "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or, (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. Licensee shall provide prompt written notice to the City of the existence of hazardous substances at the Stadiums and any notices of violation of environmental laws received by Licensee. 1.3 Concessions and Ticket Sales. The City hereby grants to Licensee the exclusive right to operate all novelty, program, refreshment and concession facilities within the Stadium during Home Games and tournanents hosted by the Team. The City reserves the right to retain concessions for City-sponsored events. Licensee shall serve and provide for the sale of such items of food, drink and goods as are normally served by concessionaires in baseball �Rb 1003/00128671.02 2 stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets. All rates charged for admission to the Stadium for Home Games and tournament games and for the sale of concessions shall be uniform, except that Licensee shall provide discounted admission prices for children Linder twelve (12), students and adults over sixty-five (65) years of age, and subject to the prior approval of the City, which approval shall not be unreasonably withheld. The standard used by the City to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The City shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and for concessions and, in the event that after Licensee has been advised and given a reasonable opportunity to confer with the City and justify the prices then in effect, if the City determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the City. Licensee shall display all prices for admission and concessions conspicuously on signs approved by the City. 1.4 Advertisine. Licensee shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the City. All revenue received from such advertising shall be received by Licensee. Outfield advertising shall remain in place from March 1, 2004 through December 31, 2004. Such advertising shall be subject to the approval of the City, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or rentals of the Stadium by third parties. Licensee shall promote the Stadium and its team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes, Licensee shall include reference to the City in all paid media (advertising), publications and signage. The City shall be identified on a credit line prominently presented on the Licensee's website page. There shall be a hyperlink from the Licensee's website to the City's website at www.ci.palm-springs.ca.us. The parties agree that said link may be "Framed" whereby material or pages from the linked website appear in a frame on the site which creates the link. The parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy or completeness of materials contained on their respective websites and agree to hold each other harmless from any special, indirect, incidental or consequential damages that may arise from the use of, or the inability to use, the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or the Licensee. The City shall be positioned as "Presenting Sponsor" in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full-page four-color advertisement on the inside of the Licensee's official program for marketing and promotion purposes. 1.5 Repairs and Maintenance. Licensee shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium and the adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each Home Game and tournament game. By entering into the Stadium, Licensee shall be deemed to have accepted the Stadium as being in 9PA 1003/00128671 02 3 a good, neat, clean and orderly condition. Licensee agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. The City hereby agrees to mow, water, seed and otherwise maintain the playing field of the Stadimn in a condition satisfactory to conduct independent league baseball games, provided that Licensee shall be responsible for preparing the infield for all Home Games and tournament games. The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis to be operable at the time of all Home Gaines and tournament games. The City shall be responsible for cleaning the Stadium to a good, neat, clean and orderly condition after third-party events. 1.6 Utilities. The City shall provide all utilities for the Stadium, including water, gas and electricity. Licensee hereby waives any and all claims it may now or in the future have against the City for any losses or damages sustained by Licensee by reason of any defect, deficiency or impairment in the provision of utilities to the Stadium. 1.7 Alterations and Fixtures. Licensee shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the City, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The City may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the Licensee's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at Licensee's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 1.5 above. In installing and removing any such alterations or fixtures, Licensee shall pay the prevailing wage rate. Licensee shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by Licensee. Prior to the first PSP home game, City shall, at its sole expense, (a) replace the outfield fence wall; (b) replace and install the protective netting behind home plate; and (e) install the outfield batter's eye, all to acceptable standards agreed upon by and between the parties to this Agreement. 1.8 Damage and Destruction. In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadinun or (b) the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than Licensee's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair the Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this 1003100128671.02 4 Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City mid Licensee as of the date of such destruction. 1.9 Compliance with Law. Licensee shall use the Stadium and conduct its operations thereon in accordance with all ordinaices, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 1.10 Licenses, Permits, Fees and Assessments. Licensee shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 1.11 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 services of the other. 1.12 Prohibited Activities. (a) The City reserves the right to prohibit the sale of any item at the concession staid. (b) Vending machines are prohibited. (c) The sale of tobacco, gum and all other items which create safety or litter problems, as detennined by the City, are prohibited. (d) The sale of any item which is contained in glass or a metal container is prohibited. (e) All other activities when specified by the Contract Officer in writing and delivered to Licensee. 1.13 Security and Access. City and other public agencies, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying Licensee's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to Licensee, except that in cases of emergency no notice shall be required. 2. COMPENSATION In consideration for granting of the License herein provided, Licensee agrees to pay to the City the following: 2.1 Fixed Rental. Licensee shall pay to the City an amount equal to One Hundred Seventy Five Dollars ($175.00) for each Home Game and day of tournarnent play ("Rent"). The Rent is calculated as the sum of One hundred Dollars ($100.00) per day for the *1 r 003l00128671.02 5 use of the Stadium and Seventy Five Dollars ($75.00) per day for the electricity. One-half('/2) of the Rent shall be paid to the City on or before the first of each month, in advance, and the remainder shall be paid to the City on or before the fifteenth (15") of each month, in advance, during the term, as defined in Section 3.2. 2.2 Security Deposit. Licensee shall provide City with a security deposit in the sum of One Thousand Dollars ($1,000.00) due on or before May 1, 2004. City may draw upon the security deposit to correct any default or breach of this Agreement by Licensee, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of Licensee, its successors or assigns, to faithftdly perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of rent pursuant to Section 2.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, Licensee shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 2.2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement, or by law or in equity. The security deposit shall be returned by City to Licensee at the end of the term of this Agreement, as defined in Section 3.2, provided Licensee has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City under this Agreement, shall be made after sixty(60) days have elapsed following the effective date of said termination. 2.3 Percentage Gate. Should Licensee's attendance exceed seven hundred fifty (750) people for any Home Garne or day of tournament play, Licensee shall be required to pay to the City, on a monthly basis commencing on the fifteenth (15") day of the month following the month in which the first Home Game is played, on or before the fifteenth (15") day of each month, an amount equal to twenty five percent (25%) of the arnount of the total gate receipts for attendance in excess of 750 for that day. 2.4 Percentage of Concessions. Should Licensee's ticket sales exceed Licensee's "per game cost" for any Home Game or day of tournament play, Licensee shall be required to pay to the City, on a monthly basis commencing on the fifteenth (15`h) day of the month following the month in which the first Home Game is played, on or before the fifteenth (15`h) day of each month, an amount equal to fifteen percent (15%) of the amount of gross sales for food and beverage concessions made in, upon or from the Stadium for the preceding month for all Home Games and tournament games and an amount equal to eighteen percent (18%) of the amount of gross sales for food and beverage concessions made in, upon or from the Stadium during the preceding month for all Stadium events other than Home Games or tournament games hosted by the Team. Licensee's "per game cost" shall be the sum of Licensee's rent under this Agreement and Licensee's other approved costs, as set forth on Exhibit"A." The term "gross sales," as used herein, means the total gross receipts for food and beverage concessions sold and fees charged by Licensee for food and beverage concessions, whether for cash or credit or otherwise, and including the valuable consideration other than money received for any of the foregoing, without reserve or deduction for inability or failure to �fomu 1003/00128671.02 6 collect, including, but not limited to, sales and leases. Gross sales shall include the full retail price of any merchandise delivered or redeemed for coupons and all deposits not refunded to purchasers. Gross sales shall not include sales taxes, consumer excise taxes, gross receipt taxes and other similar taxes now or hereafter imposed upon the sale of merchandise or services, but only if corrected separately from the selling price and collected directly from customers. Licensee shall keep at the Stadium full, complete and proper books, records and accounts of its daily gross sales and gate receipts, both for cash and on credit, at all times during the tern of this Agreement. The City and its agents and employees shall have the right at any and all times during regular business hours to examine and inspect all books and records of Licensee, including any sales tax reports pertaining to the business of Licensee conducted in, upon or from the Stadimn for the purpose of investigating and verifying the accuracy of any statement of gross sales and gate receipts and to cause an audit of the business of Licensee to be made by an accountant of the City's selection. If the statement of gross sales or the statement of gate receipts previously made to the City shall be found to be inaccurate, then, and in that event, there shall be an adjustment and one party shall pay the other on demand such sums as may be necessary to settle in full the accurate amount of such percentage rental or gate receipts that should have been paid to the City for the period or periods covered by such inaccurate statement or statements. If said audit shall disclose an inaccuracy of greater than three percent (3%) with respect to the amount of gross sales or gate receipts reported by Licensee, then Licensee shall immediately pay to the City the cost of such audit; otherwise, the cost of such audit shall be paid by the City. 2.5 Real and Personal Property Taxes. In addition to all other payments herein reserved, Licensee shall pay directly to the taxing authority any possessory interest taxes imposed upon Licensee for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment and all other personal property of Licensee located in the Stadium. 2.6 Late Payment. Licensee hereby acknowledges that late payment by Licensee to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by Licensee not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. Licensee and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by Licensee. 2.7 Interest. Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non-usurious rate permitted by law, in which case interest shall be the maximum non-usurious rate allowed by law at the time the sum became due. 1003/001/28671.02 7 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Term. Unless earlier terminated in accordance with Section 7.6 of this Agreement, the term of this Agreement shall be for a period of one (1) year, commencing March 1, 2004. 4. COORDINATION OF WORK 4.1 Representative of Licensee. The following principals of Licensee are hereby designated as being the principals and representatives of Licensee, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke 4018 Carlyle Lakes Blvd. Palm Harbor, FL 34685 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 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 Licensee's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Licensee shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Licensee, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, sublet, hypothecated or otherwise transferred voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. However, Licensee may subcontract or assign the concession sales to a licensed vendor upon prior written approval by the City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent (50%) of the present ownership and/or control of Licensee, 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 Licensee of any liability hereunder without the express consent of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode or means by which Licensee, its agents or employees, bft 1003/00128671 02 8 perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Licensee's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Licensee shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Licensee shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Licensee in its business or otherwise or a joint venturer or a member of any joint enterprise with Licensee. 5. INSURANCE. INDEMNIFICATION AND BONDS 5.1 Insurance. Licensee shall procure and maintain, at its sole costs 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) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per-occurrence basis in an amount not less than either (i) a combined single limit of One Million Dollars ($1,000,000) for bodily injury, death and property damage or (ii) bodily injury limits of Five Hundred Thousand Dollars ($500,000) per person, One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) products and completed operations and property damage limits of Five Hundred Thousand Dollars ($500,000) per occurrence and Five Hundred Thousand Dollars ($500,000) in the aggregate. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both Licensee and the City against any loss, claim or damage arising from arty injuries or occupational diseases occurring to any worker employed by or any persons retained by Licensee in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than either (i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars ($250,000) per person and Five Hundred Thousand Dollars ($500,000) per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000) per occurrence and Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate or (ii) combined single limit liability of Five Hundred Thousand Dollars ($500,000). Said policy shall include coverage for owned, non-owned, leased and hired cars. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days' prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, Licensee shall, prior �6�o 1003/00128671 02 9 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 Licensee has provided City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by City. Licensee agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which Licensee may be held responsible for the payment of damages to any persons or property resulting from Licensee's activities or the activities of any person or persons for which Licensee is otherwise responsible. In the event Licensee subcontracts any portion of the work in compliance with Section 4.3 of this Agreement, the contract between Licensee and such subcontractor shall require the subcontractor to maintain the same policies of insurance that Licensee is required to maintain pursuant to this Section 5.1. 5.2 Indemnification. Licensee, as a material part of the consideration to be rendered to the City under this Agreement, hereby waives claims against the City for damage to equipment or other personal property, trade fixtures, improvements, goods, wares, inventory and merchandise in, upon or about the Stadium and for injuries to persons in or about the Stadium from any cause arising at any time. Licensee agrees to indemnify the City, its officers, agents and employees against and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities") that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Licensee, its agents, employees, subcontractors or invitees provided for herein, or arising from the negligent acts or omissions of Licensee hereunder, or arising from Licensee's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Licensee shall defend any action or actions filed in comnection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attorneys' fees incurred in con section therewith; (b) Licensee shall promptly pay any judgment rendered against the City, its officers, agents or employees for any claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Licensee hereunder; and Licensee agrees to save and hold the City, its officers, agents and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Licensee 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 Licensee hereunder, Licensee agrees to pay City, its officers, agents or g Pt4 1003/00128671.02 10 employees and or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 5.3 Sufficiency of Insurer or Surety. The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, Licensee agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the Risk Manager, provided that Licensee shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 6. RECORDS AND REPORTS 6.1 Rem. Licensee shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Licensee shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 7. 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 Licensee 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 therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured parry; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be 1003/00128671.02 11 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 parry's right to take legal action in the event that the dispute is not cured. 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 mulecessary 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 Termination for Default of Licensee. If Licensee fails to cure a default within the time periods set forth in Section 7.2 above, then the City, in addition to any other rights or remedies it may have in law or equity, shall have the immediate right to remove all persons and property from the Stadium and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Licensee, all without services of notice or resort to legal process without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby and may unilaterally terminate this Agreement by written notice effective three (3) calendar days after said notice. 7.7 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 that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the Court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8. 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 Licensee, or any successor in interest, in the p k6 t003/001/28671.02 12 event of any default or breach by the City or for any amount that may become due to Licensee 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, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested in violation of any state statute or regulation. Licensee warrants that it has not paid or given and shall not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Licensee covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. Licensee shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 9. MISCELLAENOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743, and, in the case of Licensee, 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 that 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 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 hereby declared as severable and shall be interpreted to R n 1003/00128671.02 13 carry out the intent of the parties hereunder wiless the invalid provision is so material that this 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 provision of this Agreement, and (iv) the entering into this Agreement does not violate arty provision of any other agreement to which said party is bound. 9.6 Release. Licensee hereby releases and forever discharges City from and against any and all claims, demands, actions and causes of action whatsoever which Licensee may have or may hereafter have specifically arising in any way out of the exercise by Licensee of the rights afforded by this Agreement. This is a complete and final release and shall be binding upon Licensee and covers claims arising out of or connected with Licensee's presence and/or the use of all or any portion of the Stadium by Licensee. 9.7 Assignment. Licensee may not assign this Agreement, or any right wider it, whether voluntarily or by operation by law, to an affiliate or any third party without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. As a condition precedent to any assignment, the assignee must execute an assumption agreement assuming all of the obligations under this Agreement. Licensee shall not be relieved of its obligations under this Agreement in the event of an assignment. �1 V 1003/00128671.02 14 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: CITY OF PALM SPRINGS, a municipal corporation By: By: City Clerk City Manager APPROVED AS TO FORM: ALESHIRE & WYNDER David J. 4Leshire City Attorney LICENSEE: By: Name: Title: By: Name: Title: Address: 4018 Carlyle Lakes Blvd. Palm Harbor, FL 34685 1003/00MS671 02 15 EXHIBIT"A" TO LICENSE AGREEMENT BY AND BETWEEN CITY OF PALM SPRINGS AND PALM SPRINGS POWER During the term of this one-year License Agreement, the first paragraph of Section 2.4, "Percentage of Concessions," shall not apply. EXHIBIT "A" Page 1 of 1 1003/00128671 02 MINUTE ORDER NO. AUTHORIZING THE CITY MANAGER TO EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND PALM SPRINGS POWER FOR USE OF PALM SPRINGS STADIUM. I HEREBY CERTIFY that this Minute Order, authorizing the City Manager to execute a License Agreement between the City of Palm Springs and Palm Springs Power for use of Palm Springs Stadium, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 181" day of February, 2004. PATRICIA A. SANDERS City Clerk