HomeMy WebLinkAbout11/5/2003 - STAFF REPORTS (2) DATE: November 5, 2003
TO: City Council
FROM: Executive Director - Airports
-RECOMMENDATION:
It is recommended that the City Council approve a retail cart operating agreement
between the City of Palm Springs and Paradies Shops, LLC for the operation of a
retail merchandise unit ("Retail Cart").
SUMMARY:
The requested action would allow the Paradies Shops to begin operation of a "Retail
Cart"concession at Palm Springs International Airport beginning November 19,2003.
BACKGROUND:
The Airport Commission recommended City Council approval of purchase for four(4)
"Retail Carts" at its December 4, 2002 meeting. The "Retail Carts" recently arrived
at the Airport and were initially offered for use to our existing tenants which included:
The Paradies Shops, Anton Airfood, Inc., EVA's and Airport Displays.
The Paradies Shops has agreed to operate one cart with percentage rental payments
concurrent with their existing lease agreement for airport concessions. The
percentage rental payment is as follows:
Percentage Percentage
Business (0-800,000 Enplanements) (800,000 Enplanements and Above)
News/Books/
Periodicals/Convenience 8% 10%
PGA (associated gifts) 8% 10%
Gifts (retail) 10% 12%
The term of this agreement will also be concurrent with the existing Agreement No.
4159. The term is scheduled from November 19, 2003 through November 19, 2009
with one five(5)year renewal option. The lease agreement is attached and has been
,-.,apprroo�ved as to form by the City Attorney.
AL°LEN F. SMOOT, A. A. E. '` /�% ' ARRY GRIFFITH
Executive Director - Airports Assistan Director of Aviation
APPROVEta.��--...._-�...-y-." .
City Manager
REVIEWED BY DEPT. OF FINANCE
Attachments: 1. Lease Agreement
2. Minute Order
NON-EXCLUSIVE OPERATING AND LEASE AGREEMENT
For Retail Cart
At
Palm Springs International Airport
GENERAL PROVISIONS
The City of Palm Springs, a municipal corporation ("City") hereby grants to the Operator
hereinafter named, a license to operate a Retail Cart (as hereinafter defined) at the location
specified below at the Palm Springs International Airport ("Airport") upon all of the terms and
conditions contained in this Agreement. This Agreement is subject to the following general
provisions:
Operator: Paradies, Shops, LLC
Address: 5950 Fulton Industrial Blvd. S.W., Atlanta, Georgia 30336
Phone: 760.778.6245
email: vicky.orth@theparadiesshops.com
Operator's Representative: Dick Dickson, President- Gregg Paradies, Sr. Vice President
Vicky Orth, General Manager
Retail Cart Use: Gift Shop Items
Security Deposit: N/A
Annual Rental Payment: The annual rental payment shall be based on a percentage rent
calculation. Percentage rent for the retail cart shall be calculated using the following
percentages of gross receipts from business operations conducted on or from the retail cart:
Business Percentage Percentage
(0-800 000 Enplanements) (800,000 Enplanments and Above)
News/Books/ --_ . - ------- -----
Period icals/Convenience 8% 10%
PGA (associated gifts) 8% 10%
Gifts (retail) 10% 12%
Commencement Date: November 19, 2003
Term: 11/19/03 to 10/19/09 with one (1) five (5) year renewal option
City Business License#: N/A
Hours of Operations: During the Months of September through June, the Retail Cart shall
remain open a minimum of 6 hours per day, beginning at 5:30 a.m , 7 days a week except
during periods of extreme weather conditions. During the months of July and August, the
Retail Cart may remain open at the discretion of the Operator.
Retail Cart Identification & Location: Retail Cart#4
Location: As shown on Exhibit "A"
Palm Springs International Airport
Retail Cart Agreement
TERMS & CONDITIONS
1. The term "Retail Cart" shall mean a portable concession cart for the sale of services/
merchandise licensed to the Operator pursuant to this Agreement.
2. The Operator shall provide the Executive Director — Airports monthly gross sales
statistics in a form and content satisfactory to the City by the 10n day of each month for the
previous month.
3. The Retail Cart may not be moved or relocated to any other location or area of the
Airport by the Operator. City may require the Retail Cart to be relocated based upon Airport
operational needs at any time.
4. The initial list of merchandise / services including prices to be displayed / offered on or
from the Retail Cart, and any subsequent changes to the list of merchandise / services /
prices offered must be approved by the Executive Director — Airports in writing. Any
proposed changes to prices, other than sale prices, seasonal inventory reduction and
adjustments made as a result of new original designs must be first reviewed and approved
in writing by the Executive Director—Airports.
5. Additional space adjacent to the Retail Cart may not be used for any purpose without
advance written approval from the Executive Director—Airports.
6. Operator will not change hours or days of operation specified herein without prior written
approval from the Executive Director — Airports except during periods of extreme weather
conditions.
7. The Operator shall be responsible for all merchandise displayed on the Retail Cart. The
Operator shall be responsible for properly securing the Retail Cart and all items stored in the
Retail Cart.
8. No changes or alterations shall be made to the Retail Cart, including physical
appearance or operational qualities of the Retail Cart without prior written approval from the
Executive Director—Airports.
9. The Operator shall keep the Retail Cart in excellent physical / operating condition during
the Agreement term. The Operator shall inspect the Retail Cart on a daily basis with respect
to its cleanliness, operation, physical appearance, and function. If repairs or maintenance
are necessary, Operator shall immediately advise the Airport Operations Center. The
Operator shall be responsible for the cost of all maintenance and/or repairs to damage to
the Retail Cart as a result of negligence on the part of the Operator, its employees or
agents.
10. The operations of the Operator, its employees, invitees and those doing business with it
shall be conducted in an orderly and proper manner so as not to annoy, disturb or be
offensive to others at the Airport. The City shall have the right to object to the Operator
regarding the demeanor, conduct and appearance of the Operator's employees, invitees
and those doing business with it, whereupon the Operator will take steps necessary to
remove the cause of the objection.
943
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Palm Springs International Airport
Retail Cart Agreement
11. Per Title 49, Code of Federal Regulations (CFR), Part 1542 every Sterile Area Worker
(SAW) must have successfully completed a fingerprint-based Criminal History Records
Check (CHRC).
12. In the use of the parkways, roads, streets, corridors, hallways, stairs and other common
areas of the Airport as a means of ingress and egress to, from and about the Airport, and
also in the use of portions of the Airport to which the general public is admitted, the Operator
shall conform and shall require its employees, invitees and others doing business with it to
conform to the Rules and Regulations of the Airport which are now in effect or which may
hereafter be adopted for the safe and efficient operation of the Airport.
13. The Operator, its employees, invitees and others doing business with it shall have no
right hereunder to park vehicles at the Airport Terminal. Parking is via permit only In the
Employee Parking Lot. Parking for the loading/unloading of merchandise must be
coordinated through the Airport Ground Transportation Center.
14. The Operator agrees to operate its business as a commercial operator at the Airport for
the use and benefit of the public; to make available all facilities and services to the public,
without unjust discrimination; and to refrain from imposing or levying excessive,
discriminatory, or otherwise unreasonable charges or fees.
15. The Operator shall maintain during the term of the Agreement comprehensive general
liability insurance in a form and content satisfactory to the City written on a per occurrence
basis in an amount not less than $100,000 per person, $300,000 per occurrence, $50,000
property damage or a combined single limit of $300,000. Said policy shall name the City
and its officers, agents and employees as additional insured's. The Operator shall deliver
certificates of insurance evidencing the coverage required herein.
16. The Operator shall maintain fire and extended coverage insurance written on a per
occurrence basis on its improvements appurtenances, alterations, trade fixtures, equipment,
personal property and inventory within the Retail Car from loss or damage to the extent of
their full replacement value. Operator shall have the right to self-insure the items so long as
Operator maintains a net worth satisfactory to the City. The City may require net worth
documentation up to and including an audited financial statement.
17. The Operator shall maintain a policy of worker's compensation insurance in an amount
as will fully comply with the laws of the State of California and which shall indemnify, insure
and provide legal defense for both the Operator and the City against any loss, claim or
damage arising from any injuries or occupational diseases occurring to any worker
employed by or any persons retained by the Operator in the course of conducting Operator's
business at the Retail Cart,
18. All of the policies of insurance required to be procured by Operator pursuant to the
Terms and Conditions herein shall be primary insurance and shall name the City, its officers,
employees and agents as additional insured's. The insurers shall waive all rights of
contribution they may have against the City, its officers, employees and agents and their
respective insurers. All of said policies of insurance shall provide that said insurance may
not be amended or canceled without providing 30 days prior written notice by certified mail
to the City. Prior to the effective date of this Agreement and at least 30 days prior to the
expiration of any insurance policy, Operator shall provide City with certificates of insurance
or appropriate insurance binders evidencing the above insurance coverage's written by
insurance companies acceptable to City, licensed to do business in the state where the
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Palm Springs International Airport
Retail Cart Agreement
Retail Cart is located and rated A:VII or better by Best's Insurance Guide. In the event the
City determines that (i) the Operator's activities at the Retail Cart create an increased or
decreased risk of loss to the City, (ii) greater insurance coverage is required due to the
passage of time, or (iii) changes in the industry require different coverage's be obtained,
Operator agrees that the minimum limits of any insurance policy required to be obtained by
Operator may be changed accordingly upon receipt of written notice from the City; provided
that Operator shall have the right to appeal a determination of increased coverage by the
City to the City Council of City within ten (10) days of receipt of notice from the City.
19. The Operator, as a material part of the consideration to be rendered to City under this
Agreement, hereby waives all claims against city for damages to equipment or other
personal property, trade fixtures, or improvements in, upon or about the Retail Cart and for
injuries to persons in or about the Retail Cart from any cause arising at any time. The
Operator agrees to indemnify the City, its officers, agents and employees against, and will
hold each of them harmless from, any and all actions, suits, claims, damages to persons or
property, losses, costs, penalties, obligations, errors, omissions or liabilities that may be
asserted or claimed by any person, firm or entity arising out of in connection with the
negligent performance of the work, operations, or activities of Operator, its agents,
employees, subcontractors, or invitees, provided for herein, or arising from the use of the
Retail Cart by Operator or its employees and customers, or arising from the failure of
Operator to keep the Retail Cart in good condition and repair, as herein provided, or arising
from the negligent acts or omissions of Operator hereunder, whether or not there is
concurrent passive or active negligence on the part of the City, its officers, agents or
employees but excluding such claims or liabilities arising from the sole negligence or willful
misconduct of the City, its officers, agents or employees, who are directly responsible to the
City, and in connection therewith:
(a) Operator will defend any action or actions filed in connection with any of said
claims or liabilities and will pay all costs and expenses, including legal costs and
attorney fees incurred in connection therewith;
(b) Operator will promptly pay any judgment rendered against the City, its officers,
agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such work,
operations or activities of Operator hereunder; and Operator agrees to save and
hold the City, its officers, agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees are made a party to any
action or proceeding filed or prosecuted against Operator for such damages or
other claims arising out of or in connection with the negligent performance of or
failure to perform the work, operation or activities of Operator hereunder,
Operator agrees to pay to the City, its officers, agents or employees, any and all
costs and expenses incurred by the City, its officers, agents or employees in
such action or proceeding, including, but not limited to legal costs and attorney
fees.
20. The parties hereto agree that the State of California is the proper jurisdiction for
litigation of any matters relating to this Agreement, and service mailed to the address of
Operator set forth herein shall be adequate service for such litigation. The parties further
agree that Riverside County, California is the proper place for venue as to any such litigation
and Operator agrees to submit to the personal jurisdiction of such court in the event of such
litigation.
21. The Operator for itself, its successors in interest and assigns, as a part of the
consideration hereof, does hereby covenant and agree:
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Palm Springs International Airport
Retail Cart Agreement
(a) The Operator shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The Operator shall carry out applicable
requirements of 49 CFR part 26 in the award and administration of DOT-FAA-AIP
assisted contracts. Failure by the Operator to carry out these requirements is a
material breach of this contract, which may result in the termination of this contract or
such other remedy, as the City deems appropriate.
22. Any notice given under the provisions of the Agreements shall be in writing and shall be
delivered personally or sent by certified or registered mail, postage prepaid addressed to
Operator at the address set forth on page 1 of this Agreement and the City as follows:
Executive Director—Airports
Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC.
Palm Springs, CA 92262
23. The Operator shall promptly repair or replace any property of the Airport damaged by
the Operator's operations hereunder. The Operator shall not install any fixtures or make
any alterations or improvements in or additions or repairs to the Retail Cart or any property
of the Airport except with prior written approval of the Executive Director—Airports.
24, The City shall have the right at any time and as often as it may consider it necessary to
inspect the Operator's operations and / or services being rendered, any activities or
operations of the Operator hereunder. Upon request of the City, the Operator shall operate
or demonstrate any displays owned by or in the possession of the Operator at the Airport or
to be placed or brought on the Airport premises, and shall demonstrate any process or other
activity being carried on by the Operator hereunder at the Airport. Upon notification of the
City of any deficiency in any operation, the Operator shall immediately make good the
deficiency or withdraw the machine or piece of equipment from service, and provide a
satisfactory substitute.
25. No signs, posters or similar devices shall be erected, displayed or maintained by the
Operator in view of the general public without advance written approval of the Executive
Director—Airports. Any unapproved signage may by removed by the Airport at the expense
of the Operator.
26. The Operator's representative herein before specified for such substitute as the
Operator may hereafter designate in writing, shall have full authority to act for the Operator
in connection with this Agreement, and to do any act or thing to be done hereunder, and to
execute on behalf of the Operator any amendments or supplements to this Agreement or
any extension thereof, and to give and receive notices hereunder.
27. For the rights and privileges set forth herein, the Operator shall pay in advance, without
deduction or offset, the City the monthly amount shown on page 1 of this Agreement. Said
amount shall be remitted to the City on the first day of each month for each month the
Operator shall be operating the retail cart at the Airport. For any period less than a full
month, the operator's fee shall be prorated.
28. The Operator acknowledges that any payment to be paid by Operator not paid within
five (5) days of its due date shall be subject to a five (5%) late charge.
5 2h�
Palm Springs International Airport
Retail Cart Agreement
29. The Operator shall provide a security deposit. Said deposit shall be paid at the time of
the Agreement issuance. Upon termination of the Agreement and provided that all amounts
due the Airport are paid, and the Retail Cart has been returned to the Airport in the same
condition as received by the Operator, subject to normal wear-and-tear and exposure to
weather conditions, the deposit shall be returned to Operator. In the event fees are not paid
or if the Retail Cart is damaged, City shall have the right, but not the obligation to draw upon
the deposit to cover said costs. Upon the termination of the Agreement any balance of the
deposit not drawn against shall be paid to the Operator.
30. Operator shall not sell or keep, used or displayed in or about the Retail Cart (a)
pornographic or sexually explicit books, magazines, literature, films or other printed material,
sexual paraphernalia, or other material which would be considered lewd, obscene or
licentious, (b) any article which may be prohibited by standard forms of fire insurance
policies, or (c) any alcoholic beverages.
31. Operator shall comply with all of the requirements of all municipal, state and federal
authorities not in force or which may hereafter be in force pertaining to the use of the Retail
Cart and the operations of Operator at the Airport.
32. Operator shall be responsible for collection of sales tax and must possess a sales tax
permit with a Palm Springs remitting address.
33. Operator agrees to pay prior to delinquency all lawful taxes and assessments which
during the term hereof or any extension may become a lien or which may be levied by the
state, county, city, or any other tax-levying body, upon the Retail Cart or upon any taxable
interest of Operator acquired under this Agreement, or any taxable possessory interest
which Operator may have in or to the Retail Cart or by reason of its occupancy thereof or
operations thereon, as well as all taxable property, real or personal, owned by Operator in or
about the Retail Cart. Upon making such payments, and upon request by the City, Operator
shall provide the City a copy of the paid receipts and vouchers showing such payment. With
respect to assessments for improvements which are or may be payable in installments,
Operator shall either pay the lump sum tax due or pay the installment portions as they
become due. Even though the term of this Agreement has expired, when final
determinations is made of Operator's share of such taxes and assessments, Operator shall
immediately pay to city the amount of any additional sum owed.
34. Operator shall provide a complete and proper arrangement for the adequate sanitary
handling of all trash and other refuse caused as a result of the operation of the Retail Cart
and shall provide for its timely removal to the central collection point to be provided by the
City. Operator shall provide and use suitable covered fireproof receptacles for all trash and
other refuse on or in connection with the Retail Cart. Piling of boxes, cartons, barrels, or
other similar items in view of a public area shall not be permitted.
35. In transporting merchandise, products, trash, and refuse associated with the operation
of the Retail Cart to and from the Retail Cart, Operator shall use only carts, vehicles, or
conveyances that are sealed and leak proof.
36. Operator shall not assign this Agreement or sublet the Retail Cart or any interest
therein, without the prior written consent of the City. Any assignment or subletting without
the consent of the City shall be void and constitute an incurable default hereunder.
6 a�
Palm Springs International Airport
Retail Cart Agreement
37. The occurrence of any one or more of the following events shall constitute a default and
breach of the Agreement by Operator: (a) the failure to pay any rental or other payment
required hereunder to or on behalf of the City more than three (3) days after written notice
from City to Operator that Operator has failed to pay rent when due; (b) the failure to
perform any of Operator's obligations hereunder (exclusive of a default in the payment of
money) where such default shall continue for a period of thirty (30) days after written notice
thereof from City to Operator which notice shall be deemed to be the statutory notice so long
as such notice complies with statutory requirements; (c) failure of Operator to operate the
Retail Cart for three (3) or more consecutive days or for a total of five (5) days during any
thirty (30) day period (September through June); (d) the making by Operator of a general
assignment for the benefit of creditors; (a) filing by Operator of a voluntary petition in
bankruptcy or the adjudication of Operator as bankrupt; (f) the appointment of a receiver to
take possession of all or substantially all the assets of Operator located at the Airport or of
Operator's interest in the Retail Cart; (g) the filing by any creditor of Operator of an
involuntary petition in bankruptcy which is not dismissed within sixty (60) days. In the event
of any such default or breach by Operator, City shall have the right at any time thereafter to
elect to terminate the Agreement and Operator's right to possession hereunder.
38. Operator hereby acknowledges and agrees that the Agreement herein granted is not an
exclusive lease and the City shall have the right to deal with and perfect arrangements with
any other individual or individuals, company or corporation to engage in a like Operator
activity at the Airport. In the event that nay contract granted by the city to any other like
Operator shall contain any provisions more favorable to such Operator than the terms herein
granted, then, at the option of Operator which option shall be exercised by providing written
notice to City within thirty (30) days of the date Operator receives notice of such more
favorable provision, this Agreement shall be amended to include such more favorable terms
and any off-setting burdens that may be imposed on any such other like Operator. The
intent of this provision is to ensure that Operator is competing on as equal of terms as
possible with any additional Operator and, as a result, no other Operator shall enjoy any
rights, profits or conditions more favorable to such Operator than those enjoyed by
Operator.
39. The Operator, its agents and employees shall conduct and maintain a friendly,
cooperative though competitive relationship with its competitors operating on the Airport.
Operator shall not engage in open, notorious and public disputes, disagreements or conflicts
tending to deteriorate the quality of service of its competitors or be incompatible to the best
interest of the public at the Airport. The City shall have the right to resolve all such disputes,
disagreements, or conflicts and its determination shall be final.
40. This Agreement covers in full each and every agreement of every kind or nature
whatsoever between the parties hereto concerning this Agreement, supersedes any and all
previous negotiations, agreements and understandings, if any, between the parties, oral or
written, and merges all preliminary negotiations and agreements of whatsoever kind or
nature herein. Operator acknowledges that City or its agents or representatives have made
no representations or warranties of any kind or nature not specifically set forth herein.
7 ���
10/20/2003 09:39 FAX 760 318 3815 PSP INT'L ARPT R 003
10/17/2003 FRI 17:31 Fla NO3/003
IN WITNESS WHERLo , the parties have executed and entered into this Agreement as of the
date first mitten above.
CITY OP PALM SPRINGS
ATTEST; a hnurticipal em pwatioo
ey: 13y:
City Clerk City Manager
APPROVFD¢�C`;t\1 TO FORM:
By; �� Qi✓V
City Attorney
CONTRACTOR: Cher k onc: Individual,mpurinership_,Corporation
Corporntiorci require nvo nolnri7id 518nphrru; One from path oftho following; A. Chnimmn ofaonrd,prcaidcni,or my Vice PnsidenC AND
13.Secretary,AsSISITi Q Scennry,Tmmrer,Assistant Treasurer,or Chie£Pinancial Officer).
By; By:
Silrnuturc(noLaized) Signature(notarized)
Aiattle: Name:
Title: 'rltic:
Statc of s Stau of —
County of "9F County of css
On before me _, On bolbrc me,
personalty npp ued. personally appcarcd
personalty(mown tome(or proved tome on die basis of satisfactory personally known to me(or provcd Tome on dre basia ofsatialactpry
cvidonco)to bethc p"non(s)whose namc(s)is/arc wbscdbed to the evidcn co)ro be the pdhaon(s)whose nume(s)iv/nre subscribed w the
Within Instrument ant'acknowledged in me tbat he/sheithey txeculed within instrument and acknowledged to me that he/shdthuy"ccurcd
the some in his/herithoir authorimd cupwity(le:),and thut by thesnme in his/her/their nuthorized wpuuky(iea),and lhm by
his/licr/their signantm(s)on the insrmment the person(s).or the his/heddhelr signarux(s)on the hn rmncnt The person(5),or the
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insaumant. iWIT01hcnt.
WITNF555 my hand and official scat. WITNESS my hand and official scat.
Notary Signature:_ Notary Signature:
Notary Sent: 'Notary Scut:
Palm Springs International Airport
Retail Cart Agreement
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
City Attorney
CONTRACTOR: Check one:_Individual_Partnership_Corporation
Corporations require two notarized signatures: One from each of the following. A. Chairman of Board, President,or any Vice
President.AND B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer).
By: By:
Signature (notarized) Signature (notarized)
Name Name:
Title: Title
Slate of � State of
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County of Iss County of )Ss
On before me, On before me,
personally appeared personally appeared
personally known to me(or proved to me on the basis of personally known to me(or proved to me on the basis of
satisfactory evidence)to be the person(s)whose name(s) satisfactory evidence)to be the person(s)whose name(s)
is/are subscribed to the within instrument and acknowledged is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their to me that he/she/they executed the same in his/her/their
authorized capacity(ies),and that by his/her/their signature(s) authorized capacity(ies),and that by his/her/their signature(s)
on the instrument the person(s),or the entity upon behalf of on the instrument the person(s),or the entity upon behalf of
which the person(s)acted,executed the instrument, which the person(s)acted,executed the instrument
WITNESS my hand and official seal WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary Seal. Notary Seal:
8
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MINUTE ORDER NO.
APPROVING LEASE AGREEMENTS WITH
PARADIES SHOPS, LLC, IN A FORM ACCEPTABLE
TO THE CITY ATTORNEY, FOR THE OPERATION
OF A RETAIL MERCHANDISE UNIT AT PALM
SPRINGS INTERNATIONAL AIRPORT.
I HEREBY CERTIFY that this Minute Order, approving a lease agreement with
Paradies Shops, LLC, in a form acceptable to the City Attorney, for the
operation of a retail merchandise unit at Palm Springs International Airport, was
adopted by the City Council of the City of Palm Springs, California, in a meeting
thereof held on November 5, 2003.
PATRICIA SANDERS
City Clerk