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04043 - AIRPORT TERMINAL DISPLAYS ADVERTISING
Airport Displays, LTD Amend 2 Airport Terminal Advertising AGREEMENT#4043 AMENDMENT NO. 2 to CONTRACT SERVICES AGREEME, MO 7636, 2-16-05 ADVERTISING IN AIRPORT TERMINAL AND PUBLIC ART PLACEMENT ON THE MID-VALLEY PARKWAY AIRPORT EXTENSION ROAD This AMENDMENT NO. 2 TO CONTRACT SERVICES AGREEMENT NO. A4043 ADVERTISING IN AIRPORT TERMINAL AND PUBLIC ART PLACEMENT ON THE MID- VALLEY PARKWAY AIRPORT EXTENSION ROAD ("Amendment") is entered into this day of February, 2005, by and between the City of Palm Springs, a California municipal corporation, ("City") and AIRPORT DISPLAYS, LTD, a California limited partnership ("Contractor"). RECITALS WHEREAS, the City and Contractor entered into that certain Contract Services Agreement Advertising in Airport Terminal, No. A4043, effective December 2, 1998 ("Agreement"); and WHEREAS, the City has reviewed the advertising technology being utilized by Contractor under the Agreement, and is satisfied that the advertising technology being utilized does not lag behind technological change in the industry; WHEREAS, in light of the City's finding regarding Contractor's utilization of satisfactory advertising technology, Lessor and Lessee mutually desire to extend the term of the Agreement for five (5) years in accordance with the terms of Section 3.4 of the Agreement; NOW, THEREFORE, in consideration of the promises and covenants contained herein, the above recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. Extension of Term. In accordance with the provisions of Section 3.4 of the Agreement,the City hereby approves an extension of the term of the Agreement for an additional five (5) years, commencing January 1, 2005 and continuing in full force and effect until December 31, 2009, as authorized under Section 3.4 of the Agreement. 2. Due Execution. The person(s) executing this Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said party, (iii) by so executing this Amendment, such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. 3. Full Force and Effect . Except as expressly herein modified, the terms, covenants and conditions of the Agreement shall remain unmodified and in full force and effect. AND/OR 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 ty Jerk City Manager APPROV O FORM: u,' Z�}'��Cr r ivy '[I(i City Aftorne 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.Secreta'ryy,,(,,Assistant Secretary,Treasurer,Assistant Treasurer,or hief FiPs its OOfficeerr.. &paa u a no gnz T- ----� Signature(p tariZed) Name: 11 16% % Gc:/ V J�(Ja r' Na We: /'Xi 5r%%ii9�s r Title: '�-�ihcin.��.� Title: �ca•`� ' State of 0n UFO, WC� } State of County of (Ai}ss County of ��if, z.i }ss '�p ' r5beforeme, '. f'i121�1 114.. ✓�' J 1' �} P f�� OnLd��F � 1 � � t- {� On s o3 before me,,�j /�t n i personally appeared Aui-orov /Lf- personally appeared\ G7ri2� it. 1a�YC�/� personally known to me (or-praved-.to-me.-on-the-basis�of personally known to me (er-graved on-She-basirof satisfactory evidenc�)to be the person(s)whose name(&)is/are satisfasto"idsace)to be the person( whose name(s`Xslare su-6`sc`rilSed`fo the within instrument and acknowledged to me subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized that he she/they executed the same in�iis/her/their authorized capacity(ies), and that by his/her/their, signature(s) on the capacityties), and that byC�ji's,/her/their signature(g) on the instrument the person(s),or the entity upon behalf or which the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. personO acted,executed the instrument. WITNESS my hand and officinal seal. n WITNESS my hand and official seal. _/J Notary Notary S re:gnatu IL-,`� Signature: C1=G /it/eGLC' Notary Se`) Notary Seal JANET M.BUCK w �" i .ram- COMMIS5ion# 1527166 [ ELAINE L.WEDEKIND bmi [ " Commission# 13 IND Notary Public•County Riverside County - 1; i"�t Notary Public-California i _ T MVComm,Expkes Noy 16 P00e Riverside County f MY COMM.Expires Feb 8,2007I Airport Displays Advertising AGREEMENT #4043 Amend 1 M07072, 5-15-02 AMFNT)MFNT NO. 1 to CONTRACT SERVICES AGRFFMFNTTT(l_A4041 - — ADVFRTTSING IN AIRPORT TERMINAT AND PUBLIC ART PLACEMENT ON THE MTD-VAT T FY PARKWAY AIRPORT FXTFNSTON ROAD This AMENDMENT NO. 1 TO CONTRACT SERVICES AGREEMENT NO. A4043 ADVERTISING IN AIRPORT TERMINAL AND PUBLIC ART PLACEMENT ON THE MID- VALLEY PARKWAY AIRPORT EXTENSION ROAD ("Amendment') is entered into this 0_%y of May, 2002, by and between the City of Palm Springs, a California municipal corporation, ("City") and AIRPORT DISPLAYS, LTD, a California limited partnership ("Contractor"). RECITALS WHEREAS, the City and Contractor entered into that certain Contract Services Agreement Advertising in Airport Terminal, No. A4043, effective December 2, 1998 ("Agreement'); and WHEREAS, Lessor and Lessee mutually desire to extend airport advertising services and airport public art placement along the mid-valley parkway airport extension road; NOW, THEREFORE, in consideration of the promises and covenants contained herein, the above recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. Exhibit "A",Scope, of Services at Section T 1 Exhibit "A", at Section 1.1, entitled "Grant and Acceptance of Concession" is hereby amended to replace the first sentence therein with the following, with all remaining portions of Section 1.1 remaining unmodified and in full force and effect: 16 . . . City grants to Contractor the sole and exclusive right, subject to reservations herein, to use certain space and facilities in and about the passenger terminal building and the Mid-Valley Parkway Airport extension road at the Palm Springs International Airport Terminal ("Airport Terminal"), more particularly defined in Section 2.2 below, for the installation, maintenance, and removal of advertising displays and public art placement. . . ." 2. Due. E_e xecu ion. The person(s) executing this Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said party, (iii) by so executing this Amendment, such party is formally bolmd to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. 3. Full Force and Motet. Except as expressly herein modified, the terns, covenants and conditions of the Agreement shall remain unmodified and in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the /Lla day of dZTo EA— 2002. "City" CITY OF PALM SPRINGS, CALIFORNIA Attest: City Clerk City Manager *° APPROVED AS TO FORM: City Attorhey G V®V_�3 "Contractor" AIRPORT DISPL S, LTD, a California limited paersl NEL iv1ITCHELL � ��� �� � Commission*1330730 By Notary Public-Califomia zz Riverside County QMyGU".Expm3Novl8,2W5 NamJ Title: L'A", By: Name: Title: Airport Terminal Displays,ETD Advertising in Airport Term. AGREEMENT #4043 M06282, 12-2-98 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT ADVERTISING IN AIRPORT TERMINAL THI ONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into thia—Ad day of Q r Q.j 1998 by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and AIRPORT TERMINAL DISPLAYS, LTD., a California limited partnership(herein"Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. ' 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole-=rust and expense such licenses, permits and approvals as may be required by law for the performance of line services required by this Agreement. Contractor 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 Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated) and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the 627/014084-0001/3205140 1 -11/05/98 ORIGINAL IA '%,ugh performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property,until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services,without invalidating this Agreement,to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in(i) the Contract Sum, and/or(ii)the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000, whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth. in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs,telephone expense,transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 627/014084-0001/3205140.1 a11/05/9a Page 2 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor The entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, the term of this Agreement shall be for five(5)years and shall commence on January 1, 1999, and cont4nale in full force and effect until December 31, 2004. The term may be extended by the City for an additional five (5) years commencing January 1, 2005 and continuing in full force and effect until December 31, 2009, if, on June 30, 2004, following a sixty(60)day period in which the City and Contractor shall review the advertizing technology being utilized,the City, in its discretion,is satisfied that the airport's advertizing technology does not lag behind technological change. If the City determines that technology upgrade is necessary, Contractor will have sixty (60) days to submit an implementation proposal. Upon acceptance of the proposal, the term extension until December 31, 2009, as outlined above shall become effective. Any holding over after the expiration of the original term or any extended term of the Agreement shall be on a month-to-month basis, subject to all other provisions hereof, terminable upon thirty (30) days of written notice. Upon execution of this Agreement by Contractor and City that certain Agreement No.2238 dated September 4, 1986, as extended, shall be automatically terminated and superseded by this Agreement. 4.0 COORDINATION OF WORK 627/014084-0001/3205140.1 .11/05/98 Page 3 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and nnake all decisions in connection therewith: Frank Jones Airport Displays, Ltd. 303 North Indian Canyon Drive Palm Springs, CA 92262 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent(25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liab'sty hereunder without the express consent of City. `J The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 627/014084-0001/3205140.1 all/05/9e Page 4 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, 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 Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor 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. Contractor 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 Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain,at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: a. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis. If the Contract Sum is $25,000.00 or less, the policy of insurance shall be written in an amount not less than either (i) a combined single limit of $500,000.00 or (ii) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00 products and completed operations and property damage limits of$100,000.00 per occurrence and $100,000.00 in the aggregate. If the Contract Sum is greater than $25,000.00 but less than or equal to$100,000.00, the policy of insurance shall be in an amount not less than either(i)a combined single limit of$1,000,000.00 for bodily injury, death and property damage or(ii)bodily injury limits of$500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of$500,000.00 per occurrence and$500,000.00 in the aggregate. If the Contract Sum is greater than$100,000.00,the policy of insurance shall be in an amount not less than$5,000,000.00 combined single limit. b. Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Contractor and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by o r�^ny persons retained by the Contractor in the course of carrying out the work or services contemplated in ftiis Agreement. C. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either(i)bodily injury liability limits of $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of $100,000.00 per occurrence and $250,000.00 in the aggregate or (h) combined single limit liability of $500,000.00. Said policy shall include coverage for owned, non-owned, leased and hired cars. d. Additional Insurance. Policies of such other insurance, including professional liability insurance, as may be required in the Special Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. 62WO14084-0001/3205140.1 a11/05/96 Page 5 All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled,the Contractor shall,prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following "cancellation" notice: CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL THIRTY (30)- DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN. [to be initialed] JB4,A-�) Agent Initials The Contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 5.1. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims,damages to persons or property,losses,costs,penalties,obligations, errors,omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising ct?•;of or in connection with the negligent performance of the work, operations or activities of Contractor,`its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, 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. Contractor 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 attorneys' fees incurred in connection therewith; b. Contractor 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 627/014084-0001/3205140.1 all/05/98 Page 6 negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; C. In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor 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 Contractor hereunder, Contractor 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, Iegal costs and attorneys' fees. 5.3 Performance Bon1. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insixrer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Director of Administrative Services or designee of the City ("Director of Administrative Services") due-'to unique circumstances. In the event the Director of Administrative Services determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the Director of Administrative Services; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Director of Administrative Services to the City Council of City within ten(10) days of receipt of notice from the Director of Administrative Services. 6.0 RECORDS AND REPORTS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right 627/014084-0001/3205140.1 all/05/9e Page 7 to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings,specifications, reports, records,documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Dish. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to.4-!re such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor(whether or not arising out of this Agreement) (i)any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all announts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim its made by a third party, the amount or validity of which is 62Y014084-0001/3205190.1 .11/05/98 Page 8 disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of zero dollars ($-0-) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, u,9n thirty (30) days' written notice to Contractor, except that where termination is due to the fault of nie Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition,the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60)days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non- terminating party with the opportunity to cure pursuant to Section 7.2. 627/014024-0001/3205140.1 all/05/98 Page 9 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 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 Contractor, 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 Agreement nor shall any such officer or employee participate in any decision relating to the Agreement 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. The Contractor 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 Agreement. 8.3 Covenant Against Discrimination. Contractor 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, crate, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contract r 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 Notice. Any notice, demand, request, document, consent, approval, or communication either parry desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other parry 627/014084-0001/3205140.1 all/05/98 Page 10 of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration: Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii)by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above. CITY OF SPRING CALIFORNIA a m� lcipal corporation By: - City Mana r ATTEST: C'ty Clerk APPROVED AS TO FORM: 627/014084-0001/3205140.1 .11/05/98 Page 11 City A�to ney be-CC re yin e— '1 h� s I �y�O�CL� o f2- CONTRA (Che ` One: individua{ �y partnership, lou k C. Q, corporation) i," (NOTARIZED) By: r'•-S^ rv3tp h- A" - 'k� Signamm �'WW ,- BETTY J.BUSH Commission fk 1081697 z z m{ Notary Public n Print Name and Title San nard1no Expires County w,ry My Comm,Erplres Feb 9 2000 (NOTARIZED) By: Signamrc Print Name and Title Mailing Address: (Corporations require two signatures;one from each of the following:A:Chairman of Board,President,any Vice President;AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or chief Financial Officer). End of Signatures c- , 627/014084-0001/3205140.1 all/05/98 Page 12 EXHIBIT "A" SCOPE OF SERVICES 1. CONCESSION. 1.1 Grant and Acceptance of Concession. City grants to Contractor the sole and exclusive right, subject to the reservations herein, to use certain space and facilities in and about the passenger terminal building at the Palm Springs Regional Airport Terminal ("Airport Terminal"), more particularly defined in Section 2.2 below, for the installation and maintenance of advertising displays. Contractor hereby agrees to use, maintain, insure, repair and procure and place advertising in various locations throughout the Airport Terminal upon the terms and conditions more particularly set forth herein. City expressly reserves the right to authorize other third party concessionaires to install business signs and displays in the Airport Terminal for the purpose of advertising, provided that any such party is not engaged in the advertising concession business in the Airport Terminal. 1.2 Defined Terms. The term "advertisement" and "advertising displays" shall include signs, displays, models, direct telephone line hotel and transportation advertising, and any other usual or customary means of attraction by visual appeal the attention of persons using or visiting the Airport Terminal. An advertising display shall include a wall display, a floor display, and a window display. 2. ADVERTISING. 2.1 Procurement of Advertising. Contractor shall use its best efforts to procure advertising for display in all facilities subject to this Agreement and give copies of all such contracts to City for its records. Contractor shall frequently contact local businesses, marketing directors, advertising agencies and media buying companies to sell advertising space within the Airport Terminal. Contractor shall determine rates, terms and conditions under which advertising will be sold; provided, however, that such rates, terms and conditions shall not be less than fair market prices for the space as determined by the City in its reasonable_- _ discretion. 2.2 Advertising Display Area. Contractor may use the areas and other space within and about the Airport Terminal, as generally depicted on Exhibit "D" of this Agreement as approved and authorized by the Contract Officer, which space shall be used solely for the installation and maintenance by Contractor of advertising displays. No advertisement shall be displayed except in the area designated for advertising which is approved by the Contract Officer. Contractor shall pay the entire cost of soliciting, procuring, installing, maintaining and exhibiting all advertising displays. Contractor, its subcontractors, agents and employees, shall have the right of ingress and egress to and from the Airport Terminal at all reasonable times in order to carry out the terms and conditions of this Agreement; provided, however, that this right shall not be exercised in such manner or to such extent as to impede or interfere with the operation of the Airport Terminal. e2Y0140e4-0001/3205140.1 all/05/98 Page 13 2.3 Automated Event Ticketing. Contractor may utilize terminal floor space, as authorized by the Contract Officer, to establish an automated event ticketing kiosk, subject to further negotiations to establish the percentage of sales that shall accrue to the Airport. 2.4 Repair and Maintenance. Contractor shall maintain, repair, clean and service all advertising displays in a "like new" condition at all times. All repair and maintenance work shall be performed at the sole cost and expense of Contractor. 2.5 Advertising Policies. Contractor shall obtain the City's approval before any advertising display shall be placed in any location allocated for such purpose. The number, type, size and content of all advertising displayed within the Airport Terminal is subject to the approval of the Contract Officer or his or her designee and shall not contain nudity, profanity, pornography, or any content with the City determines, in its sole discretion, is harmful to the public peace, safety, health and/or welfare. Contractor shall remove any objectionable advertising within twenty-four (24) hours of receiving verbal notice from City. Contract Officer may, upon ninety (90) days' written notice to Contractor, change or delete the location of any spaces allocated for advertisements. 2.6 Unsold AdvertisingSpace.pace. If any advertising space in the Airport Terminal remains unsold or unused for a continuous period of twenty (20) days, Contractor shall so notify City and City may use such space for City sponsored activities, public service announcements or non-profit organizations through the date such advertising space is sold. Notwithstanding anything herein to the contrary, contractor shall reserve a minimum of five percent (5%) of the total advertising space within the Airport Terminal for display of such public service related matters. 2.7 Event Kiosk. Contractor shall provide an event kiosk, design to be approved by City, to be placed in the deplaning passenger travel path, as approved by the City. Said kiosk shall provide 50% of the kiosk space for special event advertising, and shall incorporate airport visual paging equipment. 2.8 Ownership of Advertising Displays and Facilities. Any advertising displays or facilities installed by Contractor or covered by this Agreement shall remain the property of 'f Contractor during the term of this Agreement. However, upon termination of this Agreement for any reason, with or without cause, City shall have the option of either requiring Contractor to (i) remove all its personal property from the Airport Terminal, including but not limited to, the advertising displays or (ii) transfer title to the advertising displays, including but not limited to the "built in" advertising cases at no additional cost to City; provided, however, that Contractor is not obligated to transfer .any movable trade fixtures to City. If City elects to acquire the advertising displays, Contractor shall execute a bill of sale in favor of City within ten (10) days of receipt of notice from City. If City elects to require contractor to remove the advertising displays from the Airport Terminal, Contractor shall repair any damages which may be caused to the Airport Terminal by such removal, and such removal and repair shall be performed within a reasonable period of time but in no event shall removal be completed less than thirty (30) days after notice from the City. 627/014084-0001/3205140.1 all/05/98 Page 14 2.9 Business License. Contractor shall maintain during the entire term of this Agreement a business license issued by the City. 2.10 Advertising Contracts. Contractor agrees that any advertising contracts with third parties running beyond the term of this Agreement shall be approved by the City, and such contract, if approved, shall be assignable to the City upon the expiration or termination of this Agreement. Nothing contained herein shall be construed as extending the term of this Agreement. 3. ADDITIONAL CONTRACTOR SERVICES 3.1 Internet. The Contractor shall, at its sole cost, display the Airport's flight schedule on the Palm Springs Life web page and shall forward to City any specific requests for Airport information left on the web site. Further, Contractor shall tie its site to the Airport site. 3.2 The Guide. The Contractor shall, at its sole cost, display the airport's flight schedule in the Guide Magazine. 3.3 Special Events. The Contractor shall provide promotional support for up to two Airport special events each year. The support, at a minimum, shall be ten person hours per event. 3.4 Graphic Support. The Contract shall provide graphic design support for up to two graphic pieces (11 x 17 both sides) per year. 4. EXPANSION OF AIRPORT TERMINAL. 4.1 Installation of New Advertising Facilities. In the event that the City elects in its sole and absolute discretion to expand the Airport Terminal during the term of this Agreement, resulting in additional advertising space ("Expansion Area"), Contractor agrees at its sole cost and expense to construct, install, market and operate advertising facilities in the Expansion- Area in accordance with all the terms and conditions of this Agreement. 4.2 Approval and Completion of Expansion Facilities. Contractor shall submit its plans and specifications for the additional advertising facilities within the Expansion Area to City for its approval within thirty (30) days of receipt of written notice from City of plans to commence construction of the Expansion Area. The new advertising facilities within the Expansion Area shall be of a quality comparable to the facilities in the existing Airport Terminal. Contractor shall complete construction and installation of such additional advertising facilities within one hundred twenty (120) days of the last to occur of(i) receipt of written approval of the plans and specifications from City or (ii) completion of Expansion Area. Upon Contractor's completion of construction and installation of advertising facilities in the Expansion Area, Contractor shall deliver copies of all invoices for such construction costs to City. 627/014004-0001/3205140.1 all/05/98 Page 15 EXHIBIT "B" SPECIAL REQUIREMENTS 1. Section 1.10 Disadvantaged Business Requirements is hereby added to read as follows: In accordance with Regulations of the U.S. Department of Transportation, 49 CFR Part 23, Subpart F., the City of Palm Springs has implemented a disadvantaged business enterprise (DBE) concession plan under which qualified firms may have the opportunity to operate an airport business. A DBE goal of ten (10) percent, as measured by total estimated annual gross receipts, has been established for this concession agreement. The Contractor shall take all necessary and reasonable steps to achieve this goal. DBE participation may be in the form of one or more subleases, joint ventures, partnerships, or other legal arrangement meeting the eligibility standards in 49 CFR Part 23, Subpart F. In the event that the Contractor qualifies as a DBE, the goal shall be deemed to have been met. The Contractor will be required to submit information concerning the DBE firm(s) that will participate in this concession, including the name and address of each firm, the annual estimated gross receipts to be earned by each named firm, a description'of the legal arrangements(s) to be utilized, and the total overall estimated annual gross receipts to be earned by the concession. If the Contractor will be unable to achieve the DBE goal stated herein, it will be required to provide documentation in its proposal demonstrating that it took all necessary and reasonable steps in attempting to do so, or that it is not economically feasible at this time to enter into either a joint venture, sublease, partnership, or other eligible arrangement with a DBE firm. The requirements of this paragraph are not intended to force the Contractor to change its business structure. 2. Section 5.3 Performance Bond shall not apply to this Agreement. b27/014084-0001/3205140.1 all/05/9B Page 16 EXHIBIT "C" SCHEDULE OF COMPENSATION 1. Percenta e Fee. Contractor shall pay to City a base line fee in an amount equal to fifty percent (50%) of Contractor's net receipts actually received by Contractor from the sale of advertising space in the Airport: Terminal ("Percentage Fee") unless Contractor does not collect the minitnum net receipts in the applicable calendar years as set forth in Exhibit "C- 1" attached hereto ("Net Receipts Schedule"). "Net Receipts" shall be defined as Gross Receipts less commissions paid. If Contractor fails to meet the minimum net receipts required for the applicable calendar year as required by the Net Receipts Schedule, then contractor shall pay the sum equal to the actual net receipts received by Contractor multiplied by the Increased Fee Percentages for the applicable calendar year as set forth in the Net Receipts Schedule. Any City increased percentage, once activated by Contractor not achieving required minimum Net Receipts, shall become the new baseline % fee for the City, unless in a later year, the minimum is not achieved, at which timLe City baseline fee would again be increased. 2. Adjusted Net Receipts. If expansion of the Airport Terminal is completed during the term of this Agreement, the City's percentage fee applied to the gross receipts received from advertising facilities within the Expansion Area shall remain unchanged and shall be the same as the percentage fee applied to the gross receipts from the existing Airport terminal for the applicable calendar year or as adjusted per paragraph 1 above. The first full calendar year following the completion of an expansion Area, the Minimum Net Receipts listed in Exhibit C-1 shall not be increased. Following the first full calendar year grace period, the next calendar year's Minimum Net Receipts numbers shall be adjusted, to establish a new baseline Net Receipts level, based on an amount equal to the Expansion area advertising at the then fair market rate multiplied by sixty (60)%. Contractor's books and records of Net Receipts must specifically identify those Net Receipts derived from advertising space in the Expansion Area. Any Net Receipts not so identified shall be irrevocably deemed to be receipts derived from advertising in the original Airport Terminal. 3. Payment of Fees. Within fifteen (15) days following the end of each calendar month during the term of this Agreement, commencing with the end of the first calendar month following the commencement of this Agreement, contractor shall furnish City with a statement in writing, certified by Contractor to be true and correct, showing the total gross receipts for the preceding calendar month and shall accompany each such statement with a payment to City equal to the applicable Percentage Fee. Without in any way limiting section 5.2 of this Agreement, Contractor shall[ keep at its principal place of business full, complete and proper books, records and accounts of its gross receipts, both for cash and on credit, at any time during the term of this Agreement. City and its agents and employees shall have the right at any and all times, during regular business hours, to examine and inspect all of such books and records of the Contractor and all contracts with advertising agencies. If a statement of gross receipts previously made to City shall be found to be inaccurate, then and in that event, there shall be an adjustment and one party shall pay the other on demand such sums as may be necessary to settle the accurate amount of such fee to be paid to City for the period or 527/0140en-0001/3205140.1 all/05/99 Page 17 periods covered by such inaccurate statement or statements. In addition, contractor shall provide City, within ninety (90) days of the end of contractor's fiscal year, a certification from Contractor's chief financial officer specifying the total gross receipts received derived from advertising in the Airport Terminal. -r 627/014084-0001/3205140.1 all/05/9e Page 18 EXHIBIT C- I NET .RECEIPTS SCHEDULE Calendar Minimum Net City's Increased Year Receipts.* Percentage ** 1999 $225,000 51% 2000 232,875 52% 2001 241,025 53% 2002 249,461 54% 2003 258,192 55% 2004 267,229 56% 2005 276,582 57% 2006 286,262 58% 2007 296,282 59% 2008 306,651 60% * Escalated at 3.5%/year; City baseline share is 50% of minimum Net Receipts ** If minimum Net Receipts level is not achieved in any year the "City's Increased Percentage" listed for that same year shall be the new City share for the remainder of the term of the Agreement unless in a later year the required minimum is not achieved, at which time the City share would again be increased. 627/014084-0001/3205140.1 all/05/98 Page 19 0 EXHIBIT "D" GENERAL DEPICTION OF AREAS WITHIN AIRPORT TERMINAL FOR ADVERTISING SPACE 627/014004—OOOI/3205140.1 au/05/ee Page 20 io of EXHIBIT Q GATE 5 I 1 - 1 GATE 4 A#4043 Wall Mounted Displays Airport Displays �� Baggage Carrousel Maplays� Designated Advertising Showcases o Direct Dial Phone hoard Areas Floor ExhibRArea Vehicle Exhibit Area Plasma Screens n ExhIN a d y; Brochure Rack o Pillar Wraps . Date }l�y Ceiling Banners • Corridor Support Wraps nk Jo s rport DIsplays 1 € %Yalcame Banners GATE 3 GATE 2 RECEIVED GATE 9 JUL 27 2646 Y; D.K. OF AVIATION �L V �O Palm Springs International Airport Terminal Advertising O o o � CERTIFICAS OF INSURANCE _ ISSUE DATE (MMIDDNY) 01/20/99 -PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE HRH Ins Sery of So California POLICIES BELOW. License Number 0664503 -- -- -- - - -- -- - ---- ------ - -- -- - 77.564 Country Club Dr. #401 COMPANIES AFFORDING COVERAGE Palm Desert CA 92211 COMPANY A St. Paul Fire & Marine I LETTER COMPANY INSURED - - - - - - - LETTER B ✓ n l- COMPANV Airport Display Limited LETTER C 303 N Indian Ave. COMPANY D Palm Springs CA 92262 LETTER ,�n COMPANY E - -- - - - - LETTER COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS DO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR' DATE (MMIDDIYY) DATE(MMIDDNY) LIMITS A GENERAL LIABILITY CK06101613 08/13/98 08/13/99 GENERAL AGGREGATE $ 2,000,000 _ X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGO. $ _ _ 1 ,000,000 INJ CLAIMS MADE X OCCUR. PERSONAL&ADV. URY $ I,000,000 OWNER'S&CONTRACTOR'S PROT, EACH OCCURRENCE $ 1,000,000 FIRE DAMAGE(Any one fire) $ 50,000 MED EXPENSE(Any one person) 1$ 5,000 AUTOMOBILE LIABILITY - -_--- - --- -- A CK06101613 OR/13198 08113/99 COMBINED SING G LE x ANY Auro LIMIT s 1,000,000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) '$ X HIRED AUTOS BODILY INJURY X NON OWNED AUTOS (Per anodent) GARAGE LIABILITY PROPERTY DAMAGE $ EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM WORKER'S COMPENSATION STATUTORY LIMITS AND EACH ACCIDENT '$ EMPLOYERS'LIABILITY DISEASE_.POHCY LIMIT — $- - --- — —- DISEASE-EACH EMPLOYEE $ OTHER - --- ---- — _-- -- - DESCRIPTION OF OPERATIONS)LOCATIONSNEHICLES/SPECIAL ITEMS The Certificate holder is included as an additional insured under the general liability coverage, but only with respect to liability arising out of your ongoing operations performed for that insured. Re: Airport Terminal Displays A4043 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENq!`M3MXXXXXXXX MAIL 30 *DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE City Clerk - City of Palm Springs P 0 Box 2743 LEFT, BpQXXS [X �)d1(rgkX) )37 }(g(;�pgyX7 �p�T ;p�xxxxxxxxxx Palm Springs CA 92263-2743 "EX�CXEXOI FOR NON PARMEN Q )I RE I$*WKXXIRRRkHOF�YtkNXA3mRXXXXXxxxxxxx AUTHORRE EPR ENTATIVE 1 Ann illa `�'1J�1.X-- kolL ACORD 25-S (7/90) LICP.NSE#O6 4503 ©ACORD CORPORATION 1990 �Aft NOW Airport Displays Ltd. 303 North Indian Avenue,Palm Springs, California 92262(619)32:i-707B April 16, 1999 'z A, tr? Judith Smnich tV,r City of Palm Springs Office of the City Clerk 3200 Tahquitz Canyon Way Palm Springs, Ca 92262 RE: Workers Comp Certificate Request Dear Ms. Sumich, Airport Displays,Ltd has no employees at this time and therefore does not have Workers Comp Coverage. if you have any questions please contact me at 760-325-2333 Ext. 301. Sincerely, Kim Herrera CFO