HomeMy WebLinkAbout9/3/2003 - STAFF REPORTS (31) V
DATE: September 3, 2003
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 NOVEMBER 22 AND 23, 2003
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 November 22 and 23, 2003.
SUMMARY:
Keith McCormick's Palm Springs Exotic Car Auctions is proposing to use the
Downtown Parking Structure for their November 22 and 23, 2003 Collector
Car Show and Auction since their normal venue, the Palm Springs Conven-
tion 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
review process of the Special Events Planning Team.
BACKGROUND:
Keith McCormick has 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.
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.
Page Two
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 Novem-
ber 22 and 23 event: 1) a "License Agreement for Use of the Parking Struc-
ture" by and between the City and Keith McCormick's Exotic Car Auctions; and
2) a "Release and Waiver of Rights" between the City and the "Releasing Par-
ties" (Zachary Franks, Mathew Talala, Shaul Mezrahi and Ric Service) the
business and property owners who participated financially in the parking
structure's implementation and who have been granted reserved parking
spaces. Prior to bringing this item to City Council for consideration, staff has
secured the required 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 November 22
and 23 are summarized as follows:
• A License Fee of$5,000 shall be paid by McCormick to the City by November
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 (Friday
the 21 st ) and the day after (Monday the 24th) 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 will deposit $1,000 with the City by
November 1, 2003 as a cleaning deposit;
• McCormick will be required to make a Security Deposit of $10,000 by No-
vember 1, 2003 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.
0q .
Page Three
City Council approval of the attached "License Agreement' and its included
"Release and "Waiver of Rights" will allow this event to proceed on schedule.
Staff will present an overall policy recommendation regarding future special
event proposals in the Parking Structure in the near future, prior to offering
other proposals for City Council consideration.
F
JERRY OGBURN
Director of Downtown ^evelopment
JOHN RAYMOND
Director of Community and Economic Development
APPROVED =--12`L� - ��
City Manager
ATTACHMENTS
Minute Orders (2)
License Agreement for Use of the Parking Structure
Release and Waiver of Rights
REVIEWED BY DEPI OF FINANCE
c2 ?/�--3
LICENSE AGREEMENT FOR
USE OF THE PARIUNG STRUCTURE
THIS LICENSE AGREEMENT is made and entered into, to be effective the
day of 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 Stricture"); 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 Fall 2003 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 Stricture; 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 Stricture during the Tenn 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:
1.0 SERVICES 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 up from a collector car auction ("Auction") in the
1003/028/24983 vl ���
Parking Stricture. 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 Tenn set forth below only.
1.2 Scope of Use.
Pursuant to this License and for the teen provided herein, Licensee may
use the Parking Structure to 'mite 3Sr' Csll�eA"sv- Cir Shiro L.&ChDR
1.3 Regulations.
Licensee shall ensure that the Auction and all other uses of the Parking
Stricture by Licensee and its agents, officers, employees and invitees
(collectively "Licensee's Parties") during the Tern 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 harmless
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
Canyon and Patin Canyon during the hours of 8:30 a.m. and 11:30 p.m. on
November 21-25, 2003.
(c) Licensee will obtain a plan, which shall be approved by the City, to
keep people and vehicles out of the Parking Stricture during the Tenn.
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 Stricture, Licensee shall
pay the City FIVE THOUSAND DOLLARS ($5,000) on or before
November 1, 2003.
1003/028/24983 v1 a�A S
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 November 20, 2003 through 11:30 p.m. on November
25, 2003. At the conclusion of this period of use, Licensee's clean up and
tear down of all items brought to the Parking Stricture 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 tern 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.
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 inforned 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.
t003/028/24983 v1
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the
mariner, 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 teen of this License. The
following policies of insurance shall be maintained:
(a) Workers' Compensation Insurance. Workers' Compensation Insurance
in an amount required by the laws of California and Employer's Liability
Insurance in an amount not less that ONE MILLION DOLLARS
($1,000,000) combined single limit for all damages arising from each
accident or occupational disease.
(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.
(c) Automobile Liability Insurance. A policy of comprehensive automobile
liability insurance written on a per-occurrence basis in an amount not less
than ONE MILLION DOLLARS ($1,000,000) combined single limit
covering all owned, non-owned, leased, and hired vehicles used in
connection with operations occurring on the Property.
(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.
1003/028/24983 vl
(e) General Provisions. All of the foregoing policies of insurance shall naive
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 hnsurance 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 Indenniification 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, attoriey'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 tennination of
this License.
(b) Licensee, as a material part of the consideration to City, hereby
assumes all risk of damage to the Parking Structure, 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
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
1003/028/24983 A C W 9
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 irmnediately 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.
On or before November 1, 2003, Licensee shall deposit ONE
THOUSAND DOLLARS ($1,000) with City as a cleaning deposit to
ensure that, by 11:30 p.m. on November 25, 2003, Licensee has cleaned
up and taken down all items brought to the Parking Structure by any
person in connection with the Auction. Nothing contained in this Section
6.2 shall in any way diminish or be construed as waiving any of the City's
other remedies by law or in equity. Should Licensee vacate the Parking
Stricture on November 25, 2003, in the condition required by this
License, the cleaning deposit shall be returned in full to License.
6.3 Security.
At its sole cost and expense, Licensee shall retain 24-hour miifonned
security guard services to patrol the Parking Structure during the entire
period of the Tenn.
6.4 Security Deposit.
On or before November 1, 2003, Licensee shall deposit TEN
THOUSAND DOLLARS ($10,000) with City as a security deposit to
secure the faithful performance by the Licensee of all of the terms,
covenants, and conditions of this License. Licensee agrees that, should the
1003/028/24983 v1 'J
Parking Structure, any other City property or the property of any other
person become damaged in connection with the Auction, said security
deposit may, at City's option, be applied to any damages suffered by City
or any other party to the extent of the amount of the damages suffered.
Nothing contained in this Section 6.4 shall in any way diminish or be
construed as waiving any of the City's other remedies by law or in equity.
If, as of May 31, 2004, City is not aware of any pending claims for
damages in connection with the Auction, any unspent portion of the
security deposit shall be returned in full to Licensee.
6.5 Process to Determine Standard for Cleaning and Damage to City
Property
At 8:30 a.m. on November 21, 2003, 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 rneet at on November 2S, 2003, 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.
1003/028/24983 vl
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.
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 Tenn, 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.
1003/028/24983 vl //
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.
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 whore 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:
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 /� ^
t003/028/24983 v1
Not (L4")
7u 4a Ur%C;
10
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
Date: � ' s r 2003
By:
Keith McCormick
Title: QRES
1003/028/24983 vl �2 7 A./3
Approved as to Fonn By:
By:
Counsel for Licensee
CITY:
CITY OF PALM SPRINGS
Date: 2003
By:
Mayor
ATTEST:
By:
City Clerk
Approved as to Form By:
Aleshire &Wynder, LLP
By:
David Aleshire, City Attorney
1 00 3/02 9/249 8 3 vl
RELEASE AND WAIVER OF RIGHTS
THIS RELEASE AND WAIVER AGREEMENT is made this day of
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 Palm 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 Fall 2003 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:
1003/028/24985 A 1 ^2 QA/s-
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 Stricture from 8:00 a.m, on November 20,
2003, through 11:30 p.m. on November 25, 2003 ("Tern"), 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 done in or about the Parking Structure; and that such indermiity
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 tnknown, suspected or unsuspected, which may exist, as against the City and
City's Parties, and in fa therance 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. Complianee 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 vl 2
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 pa-ties hereto. No prior oral or written understanding
shall be of any force with respect to those matters covered in this Agreement.
6. Interyretation 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.
1003/028/24985 v1 3
Aug 12 03 11 : 01a Teri Sherrow 808 875 6188 p. 1
O6/12/2003 13:44 FAX 760 325 8271 Jerry A Ogburn hg05
t=i
a
IN WITNESS WHEREOF, the parties hereto have duty executed this Apreement as
i
of the day and year first written above.
I CITY:
CITY OF PALM SPRINGS
By:
Mayor
ATTEST:
By:
City Clerk
APPROVER AS TO FORM:
{
it
i By.
City Attorney
i RELEASING PARTIES:
THE CHOP HOUSE AND THE DECK
BY= W,
tary anks
THE VILLAGE PUB AND ATLAS
j Mathew Talata
i
296 SOU PA MCA N ILPs]NG
t
By:
ShT#IkezraW
I
LAS CASUELAS TERRAZA�.
By: sl
Ric Service
I
3093M28r24985 v1 4
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1 .41 /�
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:
Mayor
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
RELEASING PARTIES:
THE CHOP HOUSE AND THE DECK
By:
Zachary Franks
THE VILLAGE PUB AND ATLAS
Mathew Talala
211 SO TH P - C ON BUILDING
By:
Shaul Mezrahi
LASCASUELASTERRAZA
By:
Ric Service C ��
1003/028/24985 v1 4
N
II 'Muriels
F
f• Supper Club
if
Las Casuelas 4, _
Terraza
Aii
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°MI
Aloe People •'• ��
� Frank
Building
Lry, as �
��;•'� Chop House/ I
The Deck •''�'
3
Village Pub I'oG�bW.i
•1.
Wr '
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I:d IOu/u
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296 South �•$ 4
o; +Palm Canyon r,
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1 P,;
MINUTE ORDER NO. 7367
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 STUCTURE FOR
A COLLECTOR CAR SHOW AND
AUCTION ON NOVEMBER 22 AND 23,
2003, IN A FORM ACCEPTABLE TO THE
CITY ATTORNEY. A04763
------------------
I HEREBY CERTIFY that this Minute Order, 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 for a
Collector Car Show and Auction on November 22 and 23, 2003, in a form
acceptable to the City Attorney, was adopted by the City Council of the City of
Palm Springs, California, in a meeting thereof held on the 3rd day of September,
2003.
T
PATRICIA A. SANDERS
City Clerk
MINUTE ORDER NO. 7368
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 NOVEMBER
22 AND 23, 2003, IN A FORM
ACCEPTABLE TO THE CITY ATTORNEY.
A04764
---------------
I HEREBY CERTIFY that this Minute Order, approving a Release and Waiver of
Rights Agreement by between the City of Palm Springs and Zachary Franks,
Mathew Talala, Shaul Merzrahi and Ric Service (the "Releasing Parties") for
Keiith McCormick's Palm Springs Exotic Car Auctions use of the entire
Downtown Parking Structure for a Collector Car Show and Auction on November
22 and 23, 2003, in a form acceptable to the City Attorney, was adopted by the
City Council of the City of Palm Springs, California, in a meeting thereof held on
the 3`d day of September, 2003.
PATRICIA A. SANDERS
City Clerk
C/ 1 C-