HomeMy WebLinkAbout1/7/2004 - STAFF REPORTS (6) P
DATE: January 7, 2004
TO: CITY COUNCIL
FROM: DIRECTOR OF THE DOWNTOWN DEVELOPMENT CENTER
APPROVALS FOR KEITH MCCORMICK'S PALM SPRINGS EXOTIC CAR
AUCTIONS USE OF THE DOWNTOWN PARKING STRUCTURE FOR A
COLLECTOR CAR SHOW AND AUCTION ON FEBRUARY 28 AND 29, 2004
RECOMMENDATION:
Approve two (2) Minute Orders approving a "License Agreement" and a
"Release and Waiver of Rights" regarding the use of the entire Downtown
Parking Structure by Keith McCormick's Palm Springs Exotic Car Auctions for
a Collector Car Show and Auction on February 28 and 29, 2004.
SUMMARY:
Keith McCormick's Palm Springs Exotic Car Auctions is proposing to use the
Downtown Parking Structure for their February 28 and 29, 2004 Collector Car
Show and Auction since their normal venue, the Palm Springs Convention
Center, is undergoing remodeling and expansion. This proposal has gained
the full support of the property and business owners who have been granted
reserved spaces in the structure, has been favorably reviewed by the Board of
Directors of MainStreet-Palm Springs, and is proceeding through the final re-
view process of the Special Events Planning Team. This event is to be virtu-
ally identical to the previous auction held by Keith McCormick in the parking
structure on November 22 and 23, 2003. It is also consistent with the "Policy
Recommendations for Special Events in Downtown Parking Structure" drafted
by the Director of the Downtown Development Center and unanimously ap-
proved by the MainStreet-Palm Springs Board of Directors on September 4,
2003. Subsequently, City Council reviewed this document and directed staff to
proceed with the February 28-29, 2004 event by Mr. McCormick.
BACKGROUND:
Keith McCormick approached the Director of the Downtown Development
Center, the MainStreet-Palm Springs Board of Directors and the Special
Events Planning Team (SEPT) with a proposal to utilize the entirety of the
City's Downtown Parking Structure for his "Collector Car Show and Auction" to
be held on November 22 and 23, 2003 and February 28 and 29, 2004. This
proposal was formally advanced by Keith McCormick's Palm Springs Exotic
Car Auctions as an interim means to keep the event in Palm Springs while
the Convention Center is being remodeled and expanded.
Page Two
Before taking this proposal to City Council for consideration, Keith McCormick
was directed by staff to secure the unanimous support of the participating
property and business owners within the parking structure who had either
paid in lieu parking fees or exchanged their property for parking rights in the
parking structure at no cost to the City and have been granted reserved
spaces in the structure as a result. He was successful in securing this unani-
mous agreement and presented a written and signed petition to staff as evi-
dence of this support.
On May 14, 2003, as a result of this business and property owner support,
City Council directed staff: 1) to proceed in cooperation with Keith McCormick
relative to his proposed November 22 and 23, 2003 event; but 2) to prepare
an overall policy proposal for use of the parking structure for special events for
consideration by City Council prior to proceeding with any future additional
proposals in the parking structure by Mr. McCormick or any other event pro-
ducer. Thus, the City Attorney's office has specifically prepared for the each
event: 1) a "License Agreement for Use of the Parking Structure" by and be-
tween the City and Keith McCormick's Exotic Car Auctions; and 2) a "Release
and Waiver of Rights" between the City and the "Releasing Parties" (Zachary
Franks, Mathew Talala, Shaul Mezrahi and Ric Service) the business and
property owners who participated financially in the parking structure's imple-
mentation and who have been granted reserved parking spaces. Prior to
bringing this item to City Council for consideration, staff has secured the re-
quired signatures of all private sector parties involved on both documents,
and both are attached to this report. The "Release and Waiver of Rights" is
included as Exhibit "A" within the "License Agreement".
The primary provisions of the "License Agreement" which apply to McCor-
mick's exclusive use of the parking structure for this event on February 28 and
29, 2004 are summarized as follows:
• A License Fee of$5,000 shall be paid by McCormick to the City by December
1, 2003;
• In addition to the specific dates of the event, which fall on a Saturday and
Sunday, McCormick will have the use of the structure the day before and the
day after to set up prior to the event and to tear down and clean up after the
event;
• McCormick will comply with all of the City's required Insurance and Indemni-
fication aspects of the License Agreement;
• McCormick will be required to vacate the Parking Structure in a clean and
undamaged condition after the event, and has deposited $1,000 with the City
as a cleaning deposit;
Page Three
• McCormick has made a Security Deposit of $10,000 in order secure the
faithful performance by the Licensee of all the terms of the License; and
• Within the "Release and Waiver of Rights" (Exhibit "A") the affected business
and property owners release their use of any of their reserved parking spaces
and indemnify and hold the City harmless relative to activities associated with
the car auction, including its set up, tear down and clean up aspects.
City Council approval of the attached "License Agreement' and its included
"Release and "Waiver of Rights" will allow this event to proceed on schedule.
6l�
J RRY OG URN
Dir to Of Downto n Development
JOHN RAYMOND
Director),of Come nity and Economic Development
APPROVED--" '
City Manager ' y
ATTACHMENTS
"Policy Recommendations for Special Events in Downtown Parking
Structure" (Memorandum)
Minute Orders (2)
License Agreement for Use of the Parking Structure
Release and Waiver of Rights
POLICY RECOMMENDATIONS FOR SPECIAL EVENTS
IN DOWNTOWN PARKING STRUCTURE
1. A maximum of two (2) special events per Calendar Year which would require the use of
the entire parking structure (374 spaces) should be allowed. These should be limited
to shoulder season/summer (after Memorial Day and prior to Thanksgiving Day) each
Calendar Year. A maximum of one (1) exception could be granted by City Council for
one of these two (2) events to occur "during season" of any Calendar Year if the event
developer had: 1) the written support by all of the owners of reserved spaced in the
structure; 2) the strong written support of the MainStreet Board; and 3) strong support
(60% or more) via signatures on a survey of all business owners along Palm Canyon
Drive and Indian Canyon Drive between Tahquitz Canyon Way and Baristo Road.
2. A maximum of an additional four (4) special events per Calendar Year which would
require only the top deck of the structure (119 spaces) should be allowed on the basis
of a maximum of one (1) per quarter of the year.
3. Any permitted events in the Downtown Parking Structure will need the written support
of the MainStreet Board and the Special Events Planning Team (SEPT) prior to
advancing to City Council for consideration.
4. Prior to advancing any event proposal involving use of the structure (entirety or top
deck) to MainStreet and SEPT for consideration, the event developer will need to
secure the signatures of all of the affected owners of reserved parking spaces on the
City's standard "Release and Waiver of Rights" agreement developed by the City
Attorney for use of the structure for special events. These owners include Shaul
Mezrahi, Ric Service, Mathew Talala, and Zachary Franks,
5. Prior to advancing any event proposal involving the structure to City Council for
consideration, the event developer will need to execute the standard "License
Agreement' developed by the City Attorney for use of the structure. The specific terms
of license fee amount, performance schedule, cleaning deposit and security deposit
shall be negotiated for each event by the Special Events Planning Team. The
executed "Release and Waiver of Rights" will be incorporated into the "License
Agreement' as an exhibit.
6. The maximum duration of any event in the parking structure (entirety or top deck) shall
be two (2) business days. Additional set up and tear down/clean up periods shall be
minimized to the extent possible, but in no case shall exceed 24 hours immediately on
either side of the event. The entire parking structure will always be open for use as
public parking on Thursday afternoons and evenings until midnight due to the needs of
VillageFest.
7. The use of the entirety of the Downtown Parking Structure for a special event shall not
coincide at any time with the closure of Palm Canyon Drive and/or Indian Canyon Drive
between Tahquitz Canyon Way and Baristo Road and the resultant loss of on-street
parking in that area during the special event. An exception to this policy could be
granted by City Council if the developer included an off-site parking and shuttle
program for downtown business patrons, and if this program had strong support as
identified for exceptions in point number one above.
LICENSE AGREEMENT FOR
USE OF THE PARKING STRUCTURE
THIS LICENSE AGREEMENT is made and entered into, to be effective the 5th
day of December, 2003, by and between the CITY OF PALM SPRINGS, a charter city
("City"), and KEITH MCCORMICK'S PALM SPRINGS EXOTIC CAR AUCTIONS ("Licensee").
City and Licensee may hereinafter be referred to individually as a "Party" and
collectively as "Parties."
RECITALS
WHEREAS, City is the fee owner of a parking structure which is located on
Indian Canyon Road in the City of Palm Springs, California("Parking Structure"); and
WHEREAS, Licensee has been conducting car auction events in the City of Palm
Springs for more than seventeen years; and
WHEREAS, Licensee typically conducts its bi-annual car auctions at the Palm
Springs Convention Center; and
WHEREAS, the Convention Center is currently being remodeled such that
Licensee may not conduct its Fall 2003 car auctions at the Convention Center; and
WHEREAS, Licensee desires to conduct its Winter 2004 car auctions in the
Parking Structure; and
WHEREAS, pursuant to various agreements, certain businesses which are located
near the Parking Structure have reserved parking spaces in the Parking Structure; and
WHEREAS, all of the owners of reserved parking spaces ("Releasing Parties")
have executed a Release and Waiver Agreement authorizing Licensee to have complete
use of the Parking Structure during the Term of this License, which use includes the use
of their reserved parking spaces; and
WHEREAS, a true and correct copy of said Release and Waiver Agreement is
attached hereto and incorporated herein as Exhibit"A."
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions set forth herein, the Parties hereto incorporate the recitals set forth above and
further agree as follows:
1003/028/24983 v1
1.0 SFRVICFS OF CONTRACTOR
1.1 Grant of Access.
City hereby grants to Licensee a license and permission to enter upon and
use the Parking Structure for the limited purposes of preparing for,
conducting and cleaning tip from a collector car auction ("Auction") in the
Parking Structure. A site plan for the Parking Structure is attached hereto
and incorporated herein by as Exhibit `B". The License granted herein
shall be valid for the Term set forth below only.
1.2 Scope of Use.
Pursuant to this License and for the term provided herein, Licensee may
use the Parking Structure to conduct the 36`1 Collector Car Show and
Auction.
1.3 Regulations.
Licensee shall ensure that the Auction and all other uses of the Parking
Structure by Licensee and its agents, officers, employees and invitees
(collectively "Licensee's Parties") during the Term comply with all
federal, state and local laws and ordinances, including the City's noise
ordinance.
1.4 Licenses, Permits, Fees and Assessments.
(a) Licensee shall obtain at its sole cost and expense such licenses,
permits and approvals as may be required by law for the Auction and the
performance of any other services required by this License. Licensee shall
have the sole obligation to pay for any fees, assessments and taxes, plus
applicable penalties and interest, which may be imposed by law and arise
from or are necessary for the Licensee's performance of the services
required by this License, and shall indemnify, defend and hold harinless
City against any such fees, assessments, taxes penalties or interest levied,
assessed or imposed against City hereunder.
(b) Licensee is solely responsible for applying for and paying all fees
related to the closure of any and all roads necessary for the Auction. It is
anticipated that Baristo Road will need to be closed between Indian
Carryon and Palm Canyon during the hours of 5:30 a.m. and 11:30 p.m. on
February 27" - March V, 2004.
(c) Licensee will obtain a plan, which shall be approved by the City,
to keep people and vehicles out of the Parking Structure during the Term.
147 1003/028/24983 v1 0
Licensee shall be solely responsible for the implementation and execution
of said plan.
2.0 COMPENSATION
2.1 License Fee.
In exchange for the exclusive use of the Parking Structure, Licensee shall pay the
City FIVE THOUSAND DOLLARS ($5,000) on or before December 5, 2003.
2.2 Admission Fees.
Licensee may charge the general public TEN DOLLARS ($10.00) per person per
day for admission to the Auction.
3.0 PERFORMANCE SCHEDULE
Unless earlier terminated in accordance with Section 7.4 of this License, this
License shall entitle Licensee to exclusive use of the Parking Structure from 8:00
a.m. on February 26, 2004 through 11:30 p.m. on March 1, 2004. At the
conclusion of this period of use, Licensee's clean up and tear down of all items
brought to the Parking Structure by any person in connection with the Auction
must be complete.
4.0 COORDINATION OF WORK
4.1 Representative of Licensee.
The following principal of Licensee is hereby designated as being the principal
and representative of Licensee authorized to act in its behalf with respect to the
work specified herein and make all decisions in connection therewith: Keith
McCormick. It is expressly understood that the experience, knowledge,
capability and reputation of the foregoing principal was a substantial inducement
for City to enter into this License. Therefore, the foregoing principal shall be
responsible during the term of this License for directing all activities of Licensee
and devoting sufficient time to personally supervise the Auction. For purposes of
this License, the foregoing principal may not be replaced nor may his
responsibilities be substantially reduced by Licensee without the express written
approval of City.
WO
1003/028/24983 v1
4.2 License Officer.
The License 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
License Officer is kept informed of matters relating to the Auction and the
Licensee shall refer any decisions which must be made by City to the License
Officer. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the License Officer. The License Officer
shall have authority to sign all documents on behalf of the City required
hereunder to carry out the terms of this License.
4.3 License Not Assignable.
This License shall become effective immediately and is personal to the Licensee
and is not assignable. Any attempt by Licensee to assign this License shall
terminate this License immediately.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner,
mode or means by which Licensee, its agents or employees, perform the services
required herein, except as otherwise set forth herein. City shall have no voice in
the selection, discharge, supervision or control of 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.
5.0 INSURANCE AND INDEMNIFICATION
5.1 Insurance.
Prior to its ability to access the Parking Structure, Licensee will provide City with
proof of insurance, at Licensee's sole cost and expense, to remain in full force and
effect during the entire term of this License. The following policies of insurance
shall be maintained:
(a) Workers' Compensation Insurance. Not applicable. See addendum.
(b) Commercial General Liability. Commercial General Liability Insurance
written on a per-occurrence and not a claims-made basis in an amount not
less that ONE MILLION DOLLARS ($1,000,000) combined single limit.
1003/028/24983 vl
III
(c) Automobile Liability Insurance. Not applicable. Reference contract
with sellers attached.
(d) Other Insurance. Such other policies of insurance including, but not
limited to, casualty insurance, business interruption insurance and fidelity
insurance, as may be required by the nature of operations.
(e) General Provisions. All of the foregoing policies of insurance shall name
the City as an additional insured and shall be primary insurance and any
insurance maintained by City shall be excess and non-contributing. Each
insurer of Licensee shall waive all rights of contribution and subrogation
against City and its respective insurers. Each of such policies of insurance
shall name City and its affiliated entities, and their respective officers,
directors, agents, and employees (collectively, "City's Parties.") All
policies of insurance required to be obtained by Licensee hereunder shall
be issued by insurance companies authorized to do business in California
and must be rated no less than B+:VII or better in Best's Insurance Guide.
Prior to engaging in any operations hereunder, Licensee shall deliver to
City certificate(s) of insurance evidencing the coverages specified above.
Such policies shall not be cancelled or materially altered to the detriment
of City or Licensee without the insurer providing City with thirty (30)
days' written notice.
5.2 Indemnification by Licensee.
(a) Licensee shall indemnify, defend (with counsel designated by
City), protect and hold harmless City, City's Parties and the
Releasing Parties from and against any and all claims, demands,
judgments, actions, damages, losses, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees and court
costs) arising at any time directly or indirectly from or in
connection with (i) any default in the performance of any
obligation by Licensee to be performed under the terms of this
License, (ii) Licensee's use of the Parking Structure, or (iii) the
conduct of Licensee's business or any activity, work or things
done, permitted or suffered by Licensee in or about the Parking
Structure, except to the extent caused by City's negligence or
willful misconduct. The obligations of Licensee under this
Section 10(a) shall survive the expiration or earlier termination of
this License.
(b) Licensee, as a material part of the consideration to City, hereby
assumes all risk of damage to the Parking Stricture, including,
without limitation, injury to persons in, upon or about the Parking
Structure during Licensee's use of the Parking Structure, arising
from any activity of Licensee relative to the Auction or other
1003/028/24983 v1 (0�#A
activities of Licensee or Licensee's Parties in the Parking
Structure. Licensee hereby waives all claims with respect thereof
against City. City shall not be liable for any injury to the Parking
Structure, or injury to or death of any of Licensee's Parties, or
injury to any of the vehicles in the Parking Structure as part of the
Auction, or injury to or death of any other person in or about the
Parking Structure from any cause except to the extent caused by
the negligence or willful misconduct of the City or the City's
Parties.
5.3 Assumption of All Risks and Liabilities.
Licensee assumes all risks and liabilities arising out of any and all use of the
Parking Structure by Licensee or Licensee's Parties.
6.0 PROPERTY RELATED ISSUES
6.1 Waste, Damage or Destruction; Surrender of Property.
The Licensee shall not allow any waste, damage or destruction to occur in or to
the Parking Structure. When this License terminates, upon such termination,
Licensee, as its sole expense, shall repair any waste, damage or destruction and
shall restore the Parking Structure to that condition existing prior to Licensee's
use of the Parking Structure. Should Licensee fail to vacate the Parking Structure
in a clean and undamaged condition, City may arrange for the cleaning and/or
repair of the Parking Structure, the cost of which will be immediately reimbursed
by Licensee, and Licensee will be additionally penalized ONE THOUSAND
DOLLARS ($1,000) per day, or portion thereof, that the Parking Structure is
unavailable for its normal use.
6.2 Cleaning Deposit.
Not applicable. Rolled over from previous event; Check# 15067.
6.3 Security.
At its sole cost and expense, Licensee shall retain 24-hour uniformed
security guard services to patrol the Parking Structure during the entire
period of the Term.
6.4 Security Deposit. Not applicable. Rolled over from previous
event; check# 15068.
10031028/24983 vl
6.5 Process to Determine Standard for Cleaning and Damage to
City Property
At 8:30 a.m. on a representative of City and
a representative of Licensee shall meet at the Parking Structure to conduct
a joint inspection and to compile a list of pre-existing damage to the
Parking Structure. The same parties shall meet at a.m. March 2,
2004, to conduct a follow up joint inspection and to compile a list
describing any damage to the Parking Structure which occurred in
connection with the Auction and any debris which was not removed from
the Parking Structure. This list, if any, shall be given to the City Manager
who shall designate a City employee to assess the value of the damage to
the Parking Structure. The value of the damage shall be deducted from
the cleaning deposit or the security deposit, as applicable. Should the
assessed damage exceed the amounts on deposit with the City, Licensee
shall pay the additional damages to the City within ten (10) days, or the
additional damages shall begin to accrue interest at the legal rate of
interest.
7.0 ENFORCEMENT OF AGREEMENT
7.1 Governing Law.
This License shall be governed by, interpreted under, and construed and enforced
in accordance with the laws of the State of California.
7.2 Waiver.
The waiver of any breach of any provision hereunder by City or Licensee shall
not be deemed to be a waiver of any preceding or subsequent breach hereunder.
No failure or delay of any Party in the exercise of any right given hereunder shall
constitute a waiver thereof nor shall any partial exercise of any right preclude
further exercise thereof.
7.3 Severability.
If any paragraph, section, sentence, clause or phrase contained in this License
shall become illegal, null or void, against public policy, or otherwise
unenforceable, for any reason, or held by any court of competent jurisdiction to
be illegal, null or void, against public policy, or otherwise unenforceable, the
remaining paragraphs, sections, sentences, clauses or phrases contained in the
License shall not be affected thereby.
6PA
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1003/028/24983 vl
7.4 Termination Prior to Expiration of Term.
This Section shall govern any termination of this License. The City reserves the
right to terminate this License at any time, with or without cause, upon sixty (60)
days' written notice to Licensee, except that where termination is due to the fault
of the Licensee, the period of notice may be such shorter time as may be
determined by the License Officer. In addition, Licensee reserves the right to
terminate this License at any time upon, with or without cause, upon sixty (60)
days' written notice to City. Upon receipt of any notice of termination during the
Term, Licensee shall immediately cease the Auction, and shall clean, repair and
vacate the Parking Structure.
7.5 Termination for Default.
If termination is due to the failure of Licensee to fulfill its obligation under this
License, City may give Licensee twelve (12) hours' notice to vacate the Parking
Structure.
7.6 Attorney's Fees.
If either party to this License is required to initiate or defend or made a party to
any action or proceeding in any way connected with this License, the prevailing
party in such action or proceeding in addition to any other relief which may be
granted, shall be entitled to reasonable attorney's fees and costs.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the
Licensee, or any successor in interest, in the event of any default or breach
by the City or for any amount which may become due to the Contractor 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 License nor shall any such officer or employee participate in any
decision relating to the License which effects his financial interest or the financial
interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. Licensee
warrants that it has not paid or given and will not pay or give any third party any
money or other consideration for obtaining this License.
66 /W3
1003/028/24983 vl
8.3 Covenant Against Discrimination.
Licensee covenants that, by and for itself, its heirs, executors, assigns, and
all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons
on account of race, color, creed, religion, sex, marital status, national
origin, or ancestry in the performance of this License. Licensee shall take
affirmative action to insure 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.
9.0 MISCELLANEOUS PROVISIONS
9.1 Headings.
The headings of this License are for purposes of reference only and shall
not limit or define the meaning of the provisions of this License.
9.2 Counterparts.
This License may be signed in any number of counterparts, each of which
will be deemed to be an original, but all of which together will constitute
one instrument.
9.3 Notice.
Any notice required or permitted to be given hereunder shall be in writing
and signed by the Party, officer or agent of the Party to whom it is to be
sent, and shall be either: (1) personally delivered to the Party to whom it
is to be sent, or (2) sent via overnight courier services, or (3) sent via
certified or registered mail, return receipt requested, postage prepaid to the
respective addresses, or such other addresses as the Parties may specify in
writing:
i
To City: City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: Director of Downtown Development
To Licensee: Keith McCormick's Palm Springs Exotic Car Auctions
1003/028/24993 v1
602 East Surmy Dunes Road
Palm Springs, California 92264
Attn: Keith McCormick
IN WITNESS WHEREOF, City and Licensee have executed this License as of
the date as indicated by the signatures below.
LICENSEE:
KEITH McCORMICK'S PALM SPRINGS
EXOTIC CAR AUCTIONS
r`
Date: 12003 Y �.
By: e = L a£
Keith McCormick
Title:
1003/028/24983 v1
Approved as to Form By:
By:
Counsel for Licensee
CITY:
CITY OF PALM SPRINGS
Date:
By:
Mayor
ATTEST:
By:
City Clerk
Approved as to Fonn By:
Aleshire & Wynder, LLP
By:
David Aleshire, City Attorney
1003/028/24983 v1 T �I
Franks, Talala, Merzrahi, Svc
Release & Waiver Pkg Struct
AGREEMENT #4763
M07368, 9-3-03
RELEASE AND WAIVER OF RIGHTS
//THIS RELEASE AND WAIVER AGREEMENT is made this day of
, rr-tlz 2003, between the City of Palm, Springs ("City') and Zachary Franks ("Franks"),
Mathew Talala ("Talala"), Shaul Mezrahi ("Mezrahi") and Ric Service ("Service"). Franks,
Talala, Mezrahi and Service may be collectively referred to as the "Releasing Parties."
RECITALS
WHEREAS, City is the fee owner of a parking structure which is located on Indian
Canyon Road in the City of Palm Springs, California ("Parking Structure"); and
WHEREAS, Franks, as the owner of The Chop House and The Deck has reserved the
right to exclusively use 25 spaces in the Parking Structure as shown on the site diagram
which is attached hereto and incorporated herein as Exhibit"A;" and
WHEREAS, Talala, as the owner of The Village Pub and Atlas has reserved the right
to exclusively use 28 spaces in the Parking Structure as shown on the site diagram, Exhibit
"A;" and
WHEREAS, Mezrahi, as the owner of 296 South Pahn Canyon Building has reserved
the right to exclusively use 44 spaces in the Parking Structure as shown on the site diagram,
Exhibit"A;" and
WHEREAS, Service, as the owner of Las Casuelas Terraza has reserved the right
to exclusively use 6 spaces in the Parking Structure as shown on the site diagram, Exhibit
"A;" and
WHEREAS, Keith McCormick's Palm Springs Exotic Car Auctions
("McCormick") has been conducting car auction events in the City for more than
seventeen years; and
WHEREAS, McCormick typically conducts its bi-annual car auctions at the Palm
Springs Convention Center; and
WHEREAS, the Convention Center is currently being remodeled such that
McCormick may not currently conduct its car auctions at the Convention Center; and
WHEREAS, McCormick desires to conduct its .1.11."PIPq car auctions in the
Parking Structure ("Auction"); and
WHEREAS, the Releasing Parties believe that conducting the Auction in the Parking
Structure will enhance the value of their individual properties by bringing visitors to the
Parking Structure as well as the Releasing Parties' adjacent properties, which visitors will
utilize the Releasing Parties' businesses.
NOW, THEREFORE, THE PARTIES HERETO INCORPORATE THE ABOVE-
LISTED RECITALS AND AGREE AS FOLLOWS:
ORIGINAL BID c4n
1003/028/24985 v1 1 AND/OR AGREEMENT
COVENANTS
1. Release. Each of the Releasing Parties, on behalf of itself and its
representatives, agents, employees, attorneys, successors and assigns, hereby releases its use
of any reserved parking spaces in the Parking Structure from 8:00 a.m. on November 20,
2003, through 11:30 p.m. on November 25, 2003 ("Tenn"), without any compensation to the
Releasing Parties, as set forth in the "License Agreement for Use of the Parking Structure"
which is incorporated herein by this reference. Pursuant to this release, each of the Releasing
Parties agrees that it will make no claim against the City for lack of parking during the Tenn.
2. Indemnity. Consideration for this release shall include that City shall obtain
from McCormick an agreement to indemnify, defend and hold harmless City, its officers,
employees, agents and contractors from any actions, suits, damages, claims, losses and
expenses (including attorneys fees and costs), including damages to persons or property,
losses, costs, penalties, obligations, errors, omissions or liabilities ("claims and liabilities")
that may be asserted or claimed by any person, firm or entity arising out of or in connection
with (i) the Auction, (ii) the use of the Parking Structure on November 20 -25, 2003, or (iii)
any activity, work or thing clone in or about the Parking Structure; and that such indemnity
include the Releasing Parties as indemnified parties.
3. Waiver of Civil Code Section 1542. By releasing and forever discharging
claims both known and unknown as provided herein, each of the Releasing Parties expressly
waives any and all rights under California Civil Code Section 1542 in connection with any
Claim or Liability against the City and City's Parties. Civil Code Section 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Each of the Releasing Parties waives and relinquishes any and all rights and benefits
which it may have under Section 1542 of the California Civil Code and any similar code
provision or protection. Each of the Releasing Parties has performed a full and complete
investigation of the facts pertaining to this Agreement. Nevertheless, each of the Releasing
Parties acknowledges and is aware that it may hereafter discover facts in addition to or
different than those which it now knows or believes to be true with respect to potential
claims, allegations, events and facts set forth herein,but it is each Releasing Parties' intention
hereby to fully and finally settle and release any and all matters, disputes, and differences,
known or unknown, suspected or nmsuspected, which may exist, as against the City and
City's Parties, and in furtherance of this intention, the release herein given shall be and
remain in effect as a full and complete general release notwithstanding discovery or existence
of any such additional or different facts.
4. Compliance with Laws. All actions taken pursuant to this Agreement shall be
provided in accordance with all federal, state, and local laws, ordinances and regulations
including, without limitation, all applicable Municipal Code provisions. Furthermore, each
1003/028/24985 v1 2 Ale
and every provision required by law to be inserted into this Agreement shall be deemed to be
inserted, and this Agreement shall be read and enforced as though they were included.
5. Integration; Amendment. This Agreement contains all of the agreements of
the parties and cannot be modified, terminated or rescinded, in whole or in part, except by an
instrument in writing signed by all parties hereto. No prior oral or written understanding
shall be of any force with respect to those matters covered in this Agreement.
6. Interpretation and Enforcement; Governing Law. This Agreement shall be
construed and interpreted both as to validity and 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 and maintained in the
Superior Court of the County of Riverside, State of California, or in any other appropriate
court with jurisdiction in such county, and the parties agree to submit to the personal
jurisdiction of such court.
By signing below, parties represent and warranty that they have authority to bind the
parties to this Agreement.
Cod/9
1003/028/24985 vI 3
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
CITY:
CITY OF PALM SPRINGS
By: f
City Manager
AT
rty Clerk loll 3/0
4��`&�IP6�VJi4+� rJ� u d`e'Yk.; �Y�.� 17s{Sa`+L�&li;a9cv
APPROVED AS TO FORM:
By: Gam.
Y
RELEASING PARTIES:
THE CHOP HOUSE AND THE DECK
By: � �zCC �� Z� IC,
Zachary Franks
THE VILLAGE PUB AND ATLAS
By; �
Mathew Talala
296 SO TH P C ON BUILDING
By:
Shaul Mezrahi
LAS CASUELAS TERRAZA
By:
Ric Service
1 0 0 3/02 8/249 8 5 A 4
Aug 12 03 11 : 01a Teri Sherrow 808 a75 6186 P. 1
i✓�
08/12/2003 13:44 PAY 760 8271 .ferry A 09bnra IA 05
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above,
I
i CITY:
i
CITY OF PALM SPRINGS
By.
Mayor
ATTEST:
i
B r
3 City Clerk
APPROVED AS TO FORM:
f�
it 1
By:
City Attorney
RELEASING PARTIES:
+� THE CHOP HOUSE AND THE DECK
.�
By:
Za0my
arlks
THE VILLAGE PUB AND ATLAS
Mathew Talala
296 SOU PA CA N ILDING
i
By:
Sho lkczrahi
LAS CASUELAS TERRAZA /
By:
^� Ric Service ^ !
I
3003/02B124995 Y1 4
NMuriel's
Supper Club _ _�• �
I �rr^rt
t A
� Las Casuelas ;� za •- • - �I
Terraza 1.2 -IN I�
OR
M,,, Iil�
testa �t=�>♦r�
lQadl]
Aloe People
Frank _?", ';° 'T�'. ..,. „x,• �,h. ... 6,. Nr:
Building '.�zr '•�� `
�k.
Chop House/ - :•>"��
The Deck `- ::•'ice
Village Pub
1;2
imam
177 W.
r,;�I�
A ;It
296 South
i•`„ 1
Palm Canyon �,. ,�`�•
�' EWI
MINUTE ORDER NO.
APPROVING A LICENSE AGREEMENT BY AND BETWEEN
THE CITY OF PALM SPRINGS AND KEITH MCCORMICK'S
PALM SPRINGS EXOTIC CAR AUCTIONS FOR USE OF
THE ENTIRE DOWNTOWN PARKING STRUCTURE FORA
COLLECTOR CAR SHOW AND AUCTION ON FEBRUARY
29 AND 29, 2004, IN A FORM ACCEPTABLE TO THE CITY
ATTORNEY.
-----------------------------------------------------
I HEREBY CERTIFY that this Minute Order,
approving a License Agreement with Keith
McCormick's Palm Springs Car Auctions
for use of the entire Downtown Parking
Structure for a collector car show and
auction on February 28 and 29, 2004 was
adopted by the City Council of the City of
Palm Springs, California in a meeting
thereof held on the 7th day of January,
2004.
BY: PATRICIA A. SANDERS
City Clerk
MINUTE ORDER NO.
APPROVING A RELEASE AND WAIVER OF RIGHTS
AGREEMENT BETWEEN THE CITY OF PALM SPRINGS
AND ZACHARY FRANKS, MATHEW TALALA, SHAUL
MEZRAHI AND RIC SERVICE (THE "RELEASING
PARTIES") FOR KEITH MCCORMICK'S PALM SPRINGS
EXOTIC CAR AUCTIONS USE OF THE ENTIRE
DOWNTOWN PARKING STRUCTURE FOR A
COLLECTOR CAR SHOW AND AUCTION ON FEBRUARY
28 AND 29, 2004, IN A FORM ACCEPTABLE TO THE CITY
ATTORNEY.
-----------------------------------------------------
I HEREBY CERTIFY that this Minute Order,
approving a Release and Waiver of Rights
Agreement by Zachary Franks, Mathew
Talala, Shaul Mezrahi and Ric Service (the
"Releasing Parties") for use by Keith
McCormick's Palm Springs Car Auctions of
the entire Downtown Parking Structure for a
collector car show and auction on February
28 and 29, 2004 was adopted by the City
Council of the City of Palm Springs,
California in a meeting thereof held on the
7th day of January, 2004.
BY: PATRICIA A. SANDERS
City Clerk
6 �