HomeMy WebLinkAbout03964 - LMI SMG HHI TOURISM SERVICES DOCUMENT TRACKING
Page: 1
Report: One Document Detail September 24, 2007
Condition: Document Numbera3964,
Document# Description Approval Date Expiration Date Closed Date
A3964 Tourism Agreement 04/25/1998 10/01/2004
Company Name: S M G
Address: 701 Market Street, 4th Floor, Philadelphia, PA 19106
Phone: ( ) -
Group: CITY MANAGER
Service: In File
xRef: CITY MANAGER
Ins. Status: A policy has Expired.
Document Tracking Items? Due Completed Tracking Amount Amount
Code Item Description Date Date Date Added Paid
03-03-04 amend#4 M07454 ext to 6/2/02 not provided by
Departmen
03-15-04 amend##3 M07406 (11/19/03) distrib to ACM
05-05-04 amend#5 M07481 ext to 10/06/04 not prov by
dept
Track Notes; not prov by dept
11-05-04 amend#6 M07556 ext to 11-6-05 in file
11-17-03 amend#2 M07384 ext term distr to ACM
C` ENDOF REPORT
C5� ��
cip
SMG
Sixth Amendment
Tourism Services
AGREEMENT#3964
SIXTH AMENDMENT TO AGREEMENT MO 7556, 9-15-04
FOR TOURISM SERVICES -- - - _----
This Sixth Amendment ("Sixth Amendment") is made and entered into this 15`I' day of
September, 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation
("City") and SMG, a Pennsylvania general partnership ("Manager").
RECITALS
A. On or about April 15, 1998, City and LMI/HHI, Ltd., a Texas limited partnership
("LMI") entered into the "Agreement for Tourism Services" ("Agreement"), pursuant to
which LMI agreed to organize, manage and coordinate all advertising, licensing,
marketing and public relation activities that promote the City for recreational, cultural,
educational, entertainment, professional, social, corporate and other activities.
B. On or about April 5, 2000, City approved LMI's assignment of LMI's duties and
obligations under the Agreement to Manager.
C. The original terra of the Agreement was five (5)-years, such that the original Agreement
would have expired on June 30, 2003.
D. On June 18, 2003, City and Manager entered into the "First Amendment to Agreement
for Tourism Services" ("First Amendment"), which extended the terra of the Agreement
for ninety(90) days, to allow the parties to begin negotiating a new agreement.
E. On October 1, 2003, City and Manager entered into the "Second Amendment to the
Agreement for Tourism Services" ("Second Amendment"), which extended the tern of
the Agreement an additional sixty (60) days, to allow the parties to continue negotiating
the new agreement.
F. On December 3, 2003, City and Manager entered into the "Third Amendment to the
Agreement for Tourism Services" ("Third Amendment"), which extended the term of the
Agreement, once again, to allow the parties to continue negotiating the new agreement.
G. On March 3, 2004, City and Manager entered into the "Fourth Amendment to the
Agreement for Tourism Services" ("Fourth Amendment"), which extended the term of
the Agreement,until June 2, 2004, to allow the parties to continue negotiating.
H. On May 5, 2004, City and Manager entered into the "Fifth Amendment to the Agreement
for Tourism Services" ("Fifth Amendment"), which extended the tern of the Agreement,
until October 6, 2004, to allow the parties to complete their negotiations.
10/12/2004 Page 1 of 2
l
t
I. City and Manager have worked diligently over the past several months and have drafted a
tentative agreement. Both parties are now reviewing that agreement. Due to the
complexity of the agreement, Manager does not believe that there is sufficient time to
properly review the draft agreement prior to the current expiration date as set forth in the
Fifth Amendment and has requested an additional thirty (30) days to complete their legal
review.
J. City and Manager desire to extend the term of the Agreement for an additional thirty (30)
days to enable the parties to complete their legal review of the draft agreement.
AGREEMENT
The recitals contained above are incorporated herein by reference and the Agreement is
hereby amended as follows:
1. Section 5.3 "Tenn" is amended to read as follows:
"5.3 Tenn. The tern of this Agreement shall extend to
November 6, 2004, unless earlier tenninated in accordance with
Section 9.7 or 4.2 of this Agreement, or until this Agreement has
been superceded by an amended and restated agreement"
2. Except as expressly provided herein, all other terms and conditions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto executed this Sixth Amendment to be
effective as of the Date first written above.
CITY OF PALM SPRINGS, a municipal
corporation
- _ _
B
Y:
City Manager
ATTEST: SMG, a Pennsylvania general partnership
By:
�j City Clerk Name cy�1 ra
Title CFO
APPROVED AS TO FORM:
City AttQj e NO
,43���
10i12/2004 Page 2 of 2
SMG
Tourism Services
AGREEMENT #3964 Amend 3
MO7406, 11-19-03
THIRD AMENDMENT TO AGREEMENT
FOR TOURISM SERVICES
This Third Amendment ("Third Amendment") is made and entered into this 19th day of
November, 2009y .and between the CITY OF PALM SPRINGS, a municipal corporation
("City") and SMG, a Pennsylvania general partnership ("Manager").
RECITALS
A. On or about April 15, 1998, City and LMI/HHI, Ltd., a Texas limited partnership
("LMI") entered into the "Agreement for Tourism Services" ("Agreement"), pursuant to
which LMI agreed to organize, manage and coordinate all advertising, licensing,
marketing and public relation activities that promote the City for recreational, cultural,
educational, entertainment, professional, social, corporate and other activities.
B. On or about April 5, 2000, City approved LMI's assignment of LMI's duties and
obligations under the Agreement to Manager.
C. The original term of the Agreement was five (5)-years, such that the original Agreement
would have expired on June 30, 2003.
D. On Jrme 18, 2003, City and Manager entered into the "First Amendment to Agreement
for Tourism Services" ("First Amendment"), which extended the term of the Agreement
for ninety(90) days, to allow the parties to begin negotiating a new agreement.
E. On October 1, 2003, City and Manager entered into the "Second Amendment to the
Agreement for Tourism Services" ("Second Amendment"), which extended the term of
the Agreement an additional sixty (60) days, to allow the parties to continue negotiating
the new agreement.
F. City and Manager are continuing to negotiate the new agreement in good faith. However,
due to the complexity of the issues involved and the parties' mutual desire to restructure
each party's obligations and responsibilities in the new agreement, the parties do not
believe that they will be able to complete their negotiations prior to the current expiration
date as set forth in the Second Amendment.
G. City and Manager desire to extend the term of the Agreement for an additional ninety
(90) days to enable the parties to complete their negotiations and finalize a new
agreement.
1003/002/27823.01 Page 1 of 1
1
AGREEMENT
The recitals contained above are incorporated herein by reference and the Agreement is
hereby amended as follows:
1. Section 5.3 "Term"is amended to read as follows:
"5.3 Term. The term of this Agreement shall extend to
February 28, 2004, unless earlier terminated in accordance with
Section 9.7 or 4.2 of this Agreement, or until this Agreement has
been superceded by an amended and restated agreement."
2. Except as expressly provided herein, all other terms and conditions of the
Agreement shall remain in fall force and effect.
IN WITNESS WHEREOF, the parties hereto executed this First Amendment to be
effective as of the Date first written above.
CITY OF PALM SPRINGS, a municipal
corporation
By: .
City Manager
ATTEST: SMG, a Pennsylvania general partnership
By:
*iicrk
Name jrly ��.z,
Title
APPROVED AS TO FORM:
li��t�I�h0`Ccltu I�`lf' tr Glib"� �1�7�YNd�V��
Pi �--
Cit .att(*ney $nl7 V010 \\-Ar 01) P\ 1)11�bk
1003/002/27823.01 Page 2 of 2
SMG LMI
Tourism Services
AGREEMENT #3964 Amend 2
MO7384, 10-1-03
SECOND AMENDMENT TO AGREEMENT — —- -- — -
FOR TOURISM SERVICES
This Second Amendment ("Second Amendment") is made and entered into this/`_>e
day of Se#4ei ��f '12003, by and between the CITY OF PALM SPRINGS, a municipal
corporation("City") and SMG, a Pennsylvania general partnership ("Manager").
RECITALS
A. On or about April 15, 1998, City and LMI/HHI, Ltd., a Texas limited partnership
("LMI") entered into the "Agreement for Tourism Services" ("Agreement"), pursuant to
which LMI agreed to organize, manage and coordinate all advertising, licensing,
promotional, marketing and public relation activities that promote the City as an
attractive locale for recreational, cultural, educational, entertainment, professional, social,
corporate and other activities.
B. On or about March 16, 2000, LMI notified City of a change of ownership interest and
requested that the City approve the assignment of LMI's duties and obligations under the
Agreement to Manager.
C. On or about April 5, 2000,the City approved LMI's assignment to Manager.
D. In accepting the assignment of the Agreement, Manager assumed full responsibility to
provide those services specified in the Agreement to be provided by LMI.
E. The term of the Agreement was for a five (5)-year period expiring on June 30, 2003.
F. On June 18, 2003, the City and Manager entered into the "First Amendment to
Agreement for Tourism Services" ("First Amendment") to extend the term of the
Agreement for ninety (90) days to allow the parties to negotiate a new agreement.
G. City and Manager are continuing to negotiate the new agreement in good faith. Due to
the complexity of the issues involved, the parties do not believe that they will be able to
complete their negotiations prior to the current expiration date as set forth in the First
Amendment.
H. City and Manager desire to extend the term of the Agreement for an additional sixty (60)
days to enable the parties to complete their negotiations and finalize a new agreement.
u*,BC, y AL e31�
1003/002/26364.01 Page 1 of 2
2,,Wr)PrjR AGREEIAFWI'
AGREEMENT
The recitals contained above are incorporated herein by reference and the Agreement is
hereby amended as follows:
1. Section 5.3 "Term" is amended to read as follows:
"5.3 Term. The tern of this Agreement shall extend to
November 30, 2003, unless earlier terminated in accordance with
Section 9.7 or 4.2 of this Agreement, or until this Agreement has
been superceded by an amended and restated agreement."
2. Except as expressly provided herein, all other teens and conditions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto executed this First Amendment to be
effective as of the Date first written above.
CITY OF PALM SPRINGS, a mlmicipal
corporation
City Manager
ST: SMG, a Pennsylvania general partnership
By:
City Clerk if //y/b3 Name ,i lay r, jz t S
Title
APPROVED AS TO FORM:
kdil—
City AtloLne.
Agreement over/tru er $25,000 / , _'_�a�d
Reviewed and approved by ,
Procurement & Contracting
InitialsDate Lr?9
P.O. Number!— �
1003/002/26364.01 Page 2 of 2
SMG LMI
Tourism Services
AGREEMENT #3964 Amend 1
M07331 , 9-30-03
FIRST AMENDMENT TO AGREEMENT
FOR TOURISM SERVICES
This First Amendment ("First Amendment" or"Amended Agreement") is made and entered into
this 18"'day of June 2003, for the purpose of amending the "Agreement for Tourism Services" (the
"Agreement") dated April 15, 1998 by and between the CITY OF PALM SPRINGS, a municipal
corporation("City") and LMI/HHI, Ltd., a Texas lnnrted partnership, ("Manager").
RECITALS
A. On or about April 15, 1998, City and Manager entered into an Agreement for Tourism Services,
pursuant to which Manager agreed to organize, manage and coordinate all advertising, licensing,
promotional, marketing and public relation activities that promote the City as an attractive locale
for recreational, cultural, educational, entertainment,professional, social, corporate and other
activities.
B. On or about March 16, 2000, Manager notified City of a change of ownership interest and
requested an assignment of the Agreement to SMG, a Pennsylvania general partnership.
C. On or about April 5, 2000, the City Council approved,pursuant to Section 6.3 of the Agreement,
the transfer of ownership to SMG.
D. In transferring ownership, SMG assumed full responsibility to provide those services specified in
the Agreement.
E. The tern of the Agreement was for a five (5)-year period expiring on June 30, 2003.
F. City and Manager are in the process of negotiating a new Agreement.
G. The parties do not believe that they will be able to complete then negotiations prior to the
expiration of the current Agreement.
H. City and Manager desire to amend the Agreement to extend the tern for an additional ninety(90)
days to enable the parties to complete then-negotiations and finalize an Agreement.
AGREEMENT
The Agreement is hereby amended as follows:
1. Section 5.3 "Tenn"is amended to read as follows:
"5.3 Term. The term of this agreement shall is hereby
extended to September 30,2003, unless earlier
tenninatedin accordance with Section 9.7 or 4.2 of
this Agreement."
2. Except as expressly provided herein, all other terms and conditions of the Agreement
shall remam in full force and effect.
IN WITNESS WHEREOF, the parties hereto executed this First Amendment to be effective as of
the Date first written above.
CITY OF PALM SPRINGS, a municipal
corporation
By: ✓
City Manager
ATTEST: LMUFIHI, Ltd., A Texas Limited Partnership
By: SMG/LMII,,LLC its General Partner
By: T►
4—cityCleric te��y�O3 Name wp e j
Title ��esrcl�'w
APPROVED AS TO FORM:
Crty Atto iG
/� L �r 1
l �
• LMI/HHI, Ltd.
Consent to Assign(SMG/LMI)
Tourism Services
AGREEENT
IN L M I M06595M4-5 003964
Leisure Management International c ,�c-/c�
March 16, 2000
Mr. Dallas Plicek, City Manager and
Authorized Representative
City of Palm Springs
P.O. Box 2743
Palm Springs, California 92263
Re: Agreement for Tourism Services, dated April 15, 1998 (the "Agreement"), by and between
the City of Palm Springs, a municipal corporation (the "City") and LMI/HHI, Ltd., a Texas
limited partnership d/b/a Leisure Management International ("LMI")
Gentlemen:
As I shared with you during our telephone conversation this morning, LMI and SMG have
"merged" their companies. As you may know, SMG has nationally recognized expertise in the
management and operation of public multi- purpose sports, entertainment, and public assembly
facilities.
As part of the transaction with SMG, the ownership interests in LMI have been transferred to SMG
(which is a Pennsylvania general partnership) and to an affiliate of SMG. The"combined" LMI and
SMG will manage and operate a substantially larger portfolio of public assembly/leisure facilities
than that managed by LMI prior to the transaction. Like LMI, SMG has extensive experience in the
management and operation of facilities and programs similar to yours and can offer a comparable
level of quality of services that LMI has provided to you over the years.
Importantly, the financial net worth of LMI will remain strong and will ultimately have greater
resources as a result of the transaction.
As you may know, Section 6.3 of our Agreement, states that transfers to any person of more than
twenty-five percent(25%) of the ownership and/or control of LMI may not be accomplished without
the prior written approval of the City. In that the transaction referenced above entails the transfer
of greater than that amount, the transaction with SMG appears to require the consent of the City
pursuant to the Agreement.
As such, LMI hereby requests that the City consent to the above-discussed transaction,that it waive
any Event of Default resulting therefrom (including, without limitation, any Event of Default
pursuant to Section 6.1 of the Agreement) and any termination rights that it may have as a result
Eleven Greenway Plaza,Suite 3000
Houston, TX77046-1105, USA
Ph 713 623 4583 1003
Faz 713.622 4134
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thereof or any other termination of the Agreement as a result thereof. It has of course been our
understanding (as particularly set forth in Section 6.3 of the Agreement) that the experience,
knowledge, capability, and reputation of LMI and its business principals and employees have been
a substantial inducement for the City to enter into the Agreement.
Importantly, LMI will remain the Manager under the Agreement and will not be relieved from any
obligations as a result of the transaction with SMG.
We are enclosing background material and financial statements of SMG to facilitate your review in
this regard.
In light of the foregoing discussion and enclosed information, we hereby request that you please
countersign below where indicated on behalf of the City to evidence the City's consent to the
transactions described in this letter.
If you need additional information or have any questions, please feel free to contact us.
Thank you for your attention to this matter.
Very truly yours,
LMI/HHI,LTD., a Teas limited partnership
A
v
By. �° 'G✓✓Psi
David Bobo, Vice-
President
The City hereby executes below, in accordance with Section 6.3 of the Agreement, to
evidence its acceptance and approval of the transactions set forth above in this letter.
ATTEST: CITY OFPALMSPRINGS, amunicipal corporation
B
City Clerk City Manager
LMI/HHI , Ltd.
Tourism Services
AGREEMENT #3964
Motion, 4-15-98
CITY OF PALM SPRINGS
AGREEMENT FOR TOURISM SERVICES
THIS CONTRACT SER ICES AGREEMENT ("Agreement" ) , is made and
entered into this day of April, 1998 ("Effective Date" ) , by
and between the CITY OF PALM SPRINGS, a municipal corporation,
( "City" ) and LMI/HHI, LTD, a Texas limited partnership, dba Leisure
Management International ( "Manager") . (The term Manager includes
professionals performing in a consulting capacity. )
RECITALS
A. City desires that the Tourism Department of the City of
Palm Springs, as defined below, be managed, operated, marketed and
promoted in a professional manner with the objectives of promoting
the City of Palm Springs as a attractive venue to international,
national and regional visitors for recreational, cultural,
educational, entertainment, professional, social, corporate and
other activities .
B. City has determined that it is in its best interests to
delegate the responsibility for the management, operation and
marketing of the Tourism Department of the City of Palm Springs to
a private management company with the experience and expertise in
the management, operation and marketing of the Tourism Department;
C. Manager is an organization whose principals have
substantial experience and expertise in the management, operation
and marketing of recreational, cultural, educational,
entertainment, professional, social, corporate and other
activities .
D. City is desirous or retaining and engaging Manager to
manage, operate, promote and market the Tourism Department to
assist in meeting the objectives as above-stated and Manager is
desirous of accepting said engagement, all on the terms and
conditions herein contained.
E . Concurrently herewith, the parties are executing an
Amendment to the Convention Center Management Agreement, as defined
below, wherein Manager shall continue to provide City with services
to manage, operate and market the Convention Center in the City of
Palm Springs, and its components, as further defined in the
Convention Center Management Agreement, including its amendments .
627/014084-0107/3155657.4 a07/17/98 1
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
COVENANTS
1. 0 DEFINITIONS_
1. 1 Definitions. In addition to other terms which are
defined elsewhere in this Agreement, the following terms, for
Purposes of this Agreement, shall have the meanings set forth in
this Section:
"Advisory Committee" shall have the meaning, organization and
functions set forth at Section 2 . 6 herein.
"Convention center Management Agreement" shall mean the
Management Agreement , executed between the City and Manager's
predecessor in interest on or about April. l, 1992 , including the
First Amendment to. Management Agreement dated August 1, 1994 , the
second Amendment to Management Agreement to be executed
concurrently herewith, and any amendments thereafter to which the
parties may, from time to time, execute with respect to Manager's
management, operation or marketing of the Palm Springs convention
Center and its components, as described more thoroughly in the
Management Agreement dated April 1; 1992 .
"Nonconvention Hotels" shall mean those Hotels (as that term
is defined in the Palm Springs Municipal Code, at Section 3 .24 . 020)
which do not have access to convention facilities used for the
provision of business, 'entertainment, social or other activities,
Nonconvention Hotels specifically exclude those hotels which are
defined as a "Group meeting hotel" in the Palm springs Municipal
Code, at Section 3 . 24 . 020.
"Tourism Budget" shall mean the funds made available to
Manager, subject to Section 4 .3, and as further defined by Section
4 . 1, for Manager's performance of all the duties required in this
Agreement. The Tourism Budget shall be equal to the budget
allocated to the Tourism Department, prior to the effective date of
this Agreement, which comprised all of the funds allocated for the
operation of the Tourism Department. The budget allocated to the
Tourisrn Department prior to the execution of this Agreement and for
the 1997-1999 fiscal year is one million five hundred thirteen
thousand nine hundred seventy eight dollars ($1, 513 , 978) (which
includes one million four hundred sixty one thousand five hundred
sixteen ($1, 461, 516) for the operation of the Tourism Department,
without visitor Center net revenues, plus net revenues from the
Visitor Center of fifty two thousand four hundred sixty two dollars
($52 , 462) ) . It is agreed that the responsibility of Manager to
perform services set forth in this Agreement are directly dependent
upon the provision of funding as set forth above.
52710140w-0107i315507.4 ,L'712119e 2
"Tourism Department" shall mean the set of duties performed by
the City of Palm Springs prior to the Effective Date of this
Agreement including the operation of facilities that promote the
City visitors as an attractive locale for recreational, cultural,
educational, entertainment, professional, social, corporate and
other activities . Such duties further include the dissemination of
information and assistance to visitors about programs, events and
facilities provided by the City or private persons or organizations
within the City. Such duties further include the operation of all
facilities in the City of Palm Springs formerly operated by the
City, including but not limited to, the Visitor Center and
information services .
"Palm Springs Tourism" shall mean the activities previously
undertaking by the Tourism Department or undertaken by the Manager
hereunder to promote the growth and success of the entire
hospitality industry in the City of Palm Springs, with all
components thereof .
2 .0 SERVICES OF MANAGER
2 . 1 Scope of Services . In compliance with all terms
and conditions of this Agreement, the Manager shall provide those
services specified in this Section 2 . 0, which services may be
referred to herein as the "services" hereunder.
2 . 2 Responsibilities of Manager. From the Effective
Date of this Agreement through the end of the Term or such other
termination date made pursuant to the terms of this Agreement,
Manager shall, consistent with this Agreement and subject to the
then applicable Tourism Budget, as that term is defined at Section
4 . 1, perform the following :responsibilities :
(a) Manage, operate, maintain and promote Palm
Springs Tourism in a manner that is consistent with City' s
practices prior to the Effective Date of this Agreement;
(b) Negotiate, execute and perform contracts, use
agreements, licenses and other agreements (1) with persons who
desire to schedule events, performances, and other activities
for the promotion of or in furtherance of Palm Springs
Tourism, or (2) that otherwise pertain to the operation,
marketing or promotion of Palm Springs Tourism;
(c) Coordinate all advertising, licensing,
promotional, marketing and public relation activities in
furtherance of Palm Springs Tourism,
(d) Formulate business plans for Palm Springs
Tourism as discussed at: Section 2 .4 below, and carry out all
actions described in the business plans;
627/014084-010713155657.4 a07/17198 3
(e) Establish a Advisory Committee as discussed at
Section 2 . 6 below, 'and coordinate activities as appropriate
through the Advisory Committee;
(f) Subject to any Pre-Existing Agreements,
negotiate, execute and perform agreements, use agreements,
licenses and other agreements (1) for all sponsorship and all
advertising rights of whatever kind or nature related to Palm
Springs Tourism, and (2) for the sale, promotion, marketing
and use of all names, trademarks, tradenames, logos and
similar intangible property relating to Palm Springs Tourism;
(g) Establish and maintain consistent procedures
for cost estimating and reporting, maintenance and payment of
invoices, including preparation of the Tourism Budget, as
defined at Section 4 . 1, and reports as contemplated by Section
8 . 0 .
(h) Plan, coordinate and administer operation of
Palm Springs Tourism;
(i) Retain legal counsel in connection with
Manager' s duties herein;
(j ) Monitor actual and projected operating expenses
incurred by Manager in the performance of its duties under
this Agreement;
(k) Make prompt payment of all operating expenses
from funds made available for that purpose pursuant to Article
4 . 1 provided, however, that nothing herein shall prohibit
Manager from reasonably contesting the validity of any claim
made against Manager;
(1) Furnish all services, personnel, materials, and
equipment and other items necessary to accomplish the
foregoing requirements of this Section 2 . 2 ; and
(m) Use reasonable efforts to assist City in
completing Exhibit "A" , as described at Section 3 .3 below,
obtaining copies and determining the status of Pre-Existing
Agreements . Manager shall undertake from City the supervision
of all contractors, subcontractors, and all other contracting
parties to the Pre-Existing Agreements and assume
responsibility for any and all negotiations, renewals,
extensions and the enforcement of such Pre-Existing
Agreements .
(n) Operate the Visitor Center as provided in
Section 2 .5 below.
2 . 3 Performance Standards . Manager agrees to provide
the services in this Agreement under the following standards, and
represents and warrants that, as a material inducement to the City
627/014084-0107/3155657.4 a07/17/98 4
entering into this Agreement, Manager shall provide the services
hereunder in a first class and highest professional manner:
(a) Manage, operate and promote Palm Springs
Tourism so as to conduct all activities within the Tourism
Budget, subject to all the terms and conditions in this
Agreement . In establishing and implementing its booking
policies, Manager may schedule not only those events that
generate substantial direct revenue to the Tourism Department,
but also those events that produce less direct revenue but, in
the Manager' s good faith judgment, generate either a
significant economic, recreational, cultural, educational,
entertainment, professional, social, or other benefit to City
or otherwise serve the public interest;
(b) . Perform its obligations under this Agreement
and conduct the management, -operation and promotion of Palm
Springs Tourism at all times in conformity with the standards
to which a good operator would operate given the monetary
limits set forth in the Tourism Budget then in effect;
(c) Perform its obligations under this Agreement in
accordance with all legal requirements of all governmental
authorities having jurisdiction over such obligations, or any
part thereof;
(d) Maintain any facility operated under this
Agreement in good condition, reasonable wear and tear
excepted, and continue maintenance procedures which will keep
such facilities in good condition and working order,
reasonable wear and tear excepted.
(e) Promptly and fully discharge and pay all of its
obligations under this Agreement at or prior to the times
specified for performance or payment; provided, however, that
nothing herein shall prohibit Manager from reasonably
contesting the validity of any claim against Manager (any such
claim due and owning to be promptly paid by Manager upon the
conclusion of such dispute by final non-appealable judgment or
otherwise) .
2 .4 Business Plans . Manager shall submit the following
business plans, in addition to any other documents, proposals or
reports required by this Agreement . The business plans described
in this Section shall be submitted to the Advisory Committee, the
Visitor and Promotion Commission, the Hotel Association and other
appropriate interest groups and bodies for their consideration and
input . Manager shall consider, and where appropriate, incorporate
the input from the interest groups consulted with herein and submit
the respective business plans to the City Council of the City of
Palm Springs. The City Council shall review, and if appropriate,
approve the respective business plan. If the City Council rejects
the proposed business plan, Manager shall resubmit a new business
627/014084-0107/3155657.4 a07/17/98 5
plan to effectuate the desires of, and address any comments, by the
City Council .
(a) One Year Plan. On or before July 1, 1998,
Manager shall submit to the City a business market plan
covering the programs and duties Manager shall perform
pursuant to this Agreement between July 1, 1998 and June 30,
1999 ( "One Year Plan" ) . The One Year Plan shall contain a
description of the proposed marketing plan for the upcoming
season including a description of marketing mechanisms and
media buys ( "Marketing Plan") .
(b) Five Year Plan. On or before October 1, 1998 ,
Manager shall submit to the City a business plan covering the
programs and duties Manager shall perform or has performed
pursuant to this Agreement between July 1, 1998 and June 30,
2003 ( "Five Year Plan" ) . The Five Year Plan shall contain at
least the following items :
(1) Nonconvention Hotels . Description of the
means by which Manager shall represent, promote and
market the interests of Nonconvention Hotels .
(2) Special Events . Description of any event
in which Manager shall assist, coordinate or be
available to coordinate with the City for recreational,
cultural, educational, entertainment, professional,
social, corporate and other activities ( "Special
Events" ) .
(3) Community Partnerships . Outline those
community organizations which can support the tourism
activity, what resources are available, what support is
needed, and what. goals a community partnership could
reasonably accomplish.
(4) Visitor Center. Description of the
methods by which Manager shall take over, operate, and
improve the Visitor Center located in the City,
consistent with Section 2 .5 below.
(5) Airport . Outline opportunities of cross
advertising and coordinate advertising with the Airport
to increase tourism.
(6) Chamber of Commerce. Description of the
methods by which Manager shall coordinate its activities
hereunder with the Chamber of Commerce located in the
City. Manager shall further describe methods it shall
employ to supplement, and coordinate Manager' s
activities with the Chamber of Commerce for maximum
efficiency and impact on visitors .
627/014084-0107/3155657.4 a07/17/98 6
(7) Palm Springs Desert Resorts C.V.B .
Interface . Description of the means by which Manager
shall coordinate with the Desert Resorts in the
Coachella Valley to promote and market to visitors the
interests of and benefits provided by Desert Resorts .
(8) International/Regional . Description of
the means by which Manager shall promote and market the
City as an attractive venue to international, national
and regional visitors for recreational, cultural,
educational, entertainment, professional, social,
corporate and other activities .
1. (9) Marketing Program. Review marketing
budget and make specific recommendations to reallocate
resources as necessary to maximize the tourism return
from the dollars expended, with special emphasis on
needs of the Nonconvention Hotels .
(10) Convention Center Interface . Description
of the methods by which Manager shall combine its duties
to promote, operate and market the Convention Center and
its components, as Manager is obligated under the
Management Agreement, and Manager' s duties under this
Agreement . Manager shall aim at a consistent and
efficient approach to operate the Tourism Department in
conjunction with its operation of the Convention Center.
2 . 5 Operation of Visitor Center. Manager shall take
over and operate the Visitor Center, which shall include the
operation of (i) the reservation service, and (ii) information
center, which shall be operated at the location existing at the
time of the Effective Date of this Agreement . Manager shall assure
that it will perform all duties and operations of the Visitor
Center performed by the City prior to the Effective Date of this
Agreement, pursuant to City rules and standards . Manager shall
further describe methods it shall employ to modify and improve the
operation of the Visitor Center aimed at making the it more
efficient, accessible and informative to international and regional
visitors .
2 . 6 Advisory Committee. Manager shall establish an
advisory committee ( "Advisory Committee" ) which shall be
responsible to consult and advise Manager regarding the performance
of this Agreement as to the best and most efficient means to
operate, maintain, promote and market Palm Springs Tourism. The
Advisory Committee which consist of no less than five (5) and no
more than fifteen (15) members, the majority of which shall be
selected from those persons designated by small and mid-sized
hotels in the City to act as members of the Advisory Committee .
The members shall be appointed to the Advisory Committee by the
Executive Director, within forty five (45) days of the Effective
Date of this Agreement .
627/014084-0107/3155657.4 207/17/98 7
2 . 7 Pavilion Staff . Manager, at its sole cost, shall
relocate the Tourism Department staff from the City of Palm Springs
Pavilion, to such other location as the Manager shall select, as is
necessary for Manager to perform its obligations under this
Agreement . Manager shall bear the entire costs of moving and
relocation of Tourism staff, including but not limited to payment
of any lease for such other location.
2 . 8 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.
2 . 9 Licenses, Permits, Fees and Assessments . Manager
shall obtain at its sole cost and expense such licenses, permits
and approvals as may be required by law for the performance of the
services required by this, Agreement . Manager 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 Manager' 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. All costs incurred hereunder shall be paid within the
Tourism Budget, as that term is defined under Section 4 . 1 herein.
3 . 0 CITY'S REPRESENTATIONS
3 . 1 Grant of Authority. City hereby grants to Manager,
and Manager hereby accepts, the exclusive right and obligation in
its own name to manage, operate, promote and market Palm Springs
Tourism on behalf of City and, in connection therewith, to perform
and furnish, or cause to be performed and furnished, all
management, operation, promotion, marketing and administration of
Palm Springs Tourism in accordance with all applicable legal
requirements, all on the terms and subject to the limitations of
this Agreement .
3 . 2 City' s Authorized Representative ; Approval .
(a) City designates City Manager to be its
Authorized Representative who shall act as a liaison and
contact person between City and Manager in all matters
concerning this Agreement . City shall have the right, from
time to time, to change the person who is its Authorized
Representative by giving Manager written notice thereof .
(b) Except for budget approvals, if Manager desires
to do any act hereunder which requires City' s prior consent
thereto or prior approval thereof, Manager shall submit to the
City' s Authorized Representative a written summary of the
proposed act and a request for City' s consent thereto or
627/014084-0107/3155657 4 a07117/98 8
� A
approval thereof . city shall respond to such request within
thirty (30) days .
3 . 3 Pre-Existing Agreements . City represents and
warrants to Manager that :
(a) To the reasonable knowledge of City, Exhibit
"A" attached hereto contains a complete list of all Pre-
Existing Agreements;
(b) City has provided or caused to be provided
Manager with complete and correct copies of such Pre-Existing
Agreements;
(c) To the reasonable knowledge of City and except
as listed in Exhibit "All hereto, each of the Pre-Existing
Agreements is in full force and effect and constitutes the
legal and binding obligation of the parties thereto;
(d) To the reasonable knowledge of City and except
as listed in Exhibit "A" , no event of default has occurred
under any material term, covenant or condition of any Pre-
Existing Agreement; and
(e) To the reasonable knowledge of City and except
as listed in Exhibit "A" , there is no pending or threatened
litigation, decree, judgment, order, arbitration proceeding or
other proceeding before any governmental authority relating to
or arising out of any such Pre-Existing Agreement .
4 . 0 COMPENSATION
4 . 1 Tourism Budqet. For the services rendered pursuant
to this Agreement, the City shall pay to Manager an amount equal to
the Tourism Budget, as that term is defined at Section 1 . 1 above .
The Tourism Budget shall constitute the entire compensation due
Manager, subject to Section 4 . 3 , under this Agreement for the
operation of Palm Springs Tourism, including but not limited to the
Executive Director' s compensation, marketing and promotion costs,
and reimbursement for actual and necessary expenditures made by
Manager in the operation of Palm Springs Tourism of whatever kind,
including but not limited to, reproduction costs, telephone
expenses and transportation expenses approved by the Authorized
Representative in advance . The Tourism Budget shall include the
attendance of Manager at all project meetings reasonably deemed
necessary by the City; Manager shall not be entitled to any
additional compensation for attending said meetings .
4 . 2 Reduction/Elimination of Revenue Source. In the
event of any significant reduction or elimination of City revenue
sources, City has the right to meet with Manager to work out how to
reduce compensation to Manager by a reduction in the Tourism Budget
proportionate to the reduction or elimination of the revenue
627/014084-0107/3155657.4 a07/17/98 9
source . If the parties fail to reach an agreement on the reduction
of the Tourism Budget, the City may terminate the Agreement within
thirty (30) days of the date in which the parties fail to reach an
agreement .
4 . 3 Performance Compensation. In addition to the
Tourism Budget payable to Manager under Section 4 . 1 above, City
shall pay to Manager annually in arrears within sixty (60) days
following June 30, 1999 , and each year thereafter, based upon the
following formula :
Base Transient Occupancy Tax ( "TOT" ) will be the actual TOT
collection of the fiscal year prior to the year being
considered, net of pass through payments made pursuant to
development/owner participation agreements or other agreements
requiring the payment of pass throughs ( "Base TOT" ) . All TOT
collections, net of passthroughs, generated for a given year
in the Term ( "Actual. TOT" ) , in excess of the Base TOT amount,
will be divided between the City and Manager in the following
ratios :
Collections Above Base TOT Citv M
8-9; 600 400
9-100 550 459.
Over 100 50% 509S
Manager shall be paid the ratio from the above table only for
that portion of the difference between Base and Actual TOT
that is attributable to each of the three "Collection Above
Base TOT" tiers set forth above . Thus, for example, Manager
shall not be entitled to 50o payment of all amounts over 10$
of Base TOT; but rather shall be paid 50% for that portion in
excess of 10% of Base TOT, 45o for that portion in excess of
90 of Base TOT, and 400 of that portion in excess of 86 of
Base TOT.
The Finance Director at: the City shall evaluate and calculate
Base TOT annually on June 30 of each year of the Term for any
changes in the TOT rate or number of facilities or rooms from
which TOT is collected within the City, which form the basis
of the TOT. If any increase or decrease in Base TOT, as
determined by the Finance Director, is the result of changes
in the TOT rate or the number of facilities or rooms from
which TOT is calculated, Manager' s compensation under this
Section shall not be increased or decreased as a result of any
such increases or decreases, respectively, to TOT.
4 .4 Marketing Expenditures . Manager shall expend no
less than sixty four percent (640) of the Tourism Budget or nine
hundred forty seven thousand four hundred dollars ($947, 400)
( "Marketing Expenditures") for the purchase of advertising and
other means of promoting and marketing the City as an attractive
venue to international, national and regional visitors for
recreational, cultural, educational, entertainment, professional,
627/014084-0107/3155657.4 a07/17/98 10
social, corporate and other activities . The Marketing Expenditures
shall not be used for the payment of any salaries or other
compensation to Manager' s employees, agents or contractors, or for
any basis other than that provided in this Section 4 .4 .
4 . 5 Expenditures in Excess of Budget . Manager shall
not, without written authorization by City, knowingly incur in any
Fiscal Year, obligations for operating expenses in excess of total
operating expenses contemplated or provided under the Tourism
Budget .
4 . 6 Payment Method. Each year during the term of this
Agreement Manager shall be paid the Tourism Budget in the manner
described herein, which payments shall be deposited in an account
as described at Section 4 . 7 below ( "Depository") in the name of
Manager. Manager shall have complete control and authority to use
the fund in the Depository for the performance of its duties under
this Agreement .
(a) Visitor Center Net Revenues . Manager shall
collect all operating revenues of the Visitor Center and
deposit them in the Depository, applying such funds and any
interest thereon first to the payment of operating costs of
the Visitor Center and thereafter to Manager as payment of
part of the total Tourism Budget for Manager' s services
accrued through the end of the prior month and thereafter to
any other operating expenses of Manager then accrued.
(b) Balance of Tourism Budaet . City shall pay the
balance of the Tourism Budget (reduced by the net revenues of
the Visitor Center paid to Manager pursuant to Paragraph (a)
immediately above) , to Manager in equal monthly installments,
except as any payments may be reduced by the City' s
advancement of funds under this Paragraph. Manager shall
deposit payments under this Paragraph in the Depositor_,r_
Manager shall apply payments made by City under this Paragraph
first as payment for costs, fees, compensation, and expenses
Manager may incur in performing its duties under this
Agreement accrued through the end of the prior month and
thereafter to any other operating expenses of Manager then
accrued. If, after the first day of any month during the
Term, the amount of monies in the Depository are insufficient
for the payment of the then due, or budgeted to become due for
such month, costs, expenses, compensation and fees for the
performance of Manager' s duties under this Agreement, Manager
shall advance the amount of such insufficiency, and City shall
promptly, but in no event later than the thirtieth (30th) day
after such advance, restore to Manager the amount of such
advance, which funds shall be drawn from, and limited to, the
balance of the Tourism Budget due for that year. In no event
shall City advance any funds to Manager in excess of the
Tourism Budget .
627/014084-010713155657.4 a07/17/98 �.]_
4 . 7 SecuritV for and Investment of Funds. All funds
and accounts required to be maintained by Manager under this
Article 4 shall be maintained in the Depository, which shall be a
bank or branch located in City. Manager shall require of the
Depository that all funds held in any account maintained under this
Article 4 be secured to such an extent and in such a manner as is
required by applicable law in connection with the deposit of funds
Of City. Money on deposit in the Depository shall be retained on
deposit in fully secured interest-bearing demand deposit accounts
or may be invested, to the: extent and only if permitted by
applicable laws, in the following obligations or securities,
maturing at such time or times so as to enable disbursements to be
made for the payment of operating costs and Manager's services:
(a) Bonds or other obligations of, or
unconditionally guaranteed by, the United states of America or
any agency or instrumentality thereof or by the state of
California; or
(b) other obligations and securities that are
lawful investments for funds of City.
5. 0 PERFORMANCE SCHEDULE
5 . 1 Time of Essence. Time is of the essence in the
performance of this Agreement.
5 . 2 Force Majeure. The time period(s) specified in the
in this Agreement 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 Manager, 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 Manager shall
within ten (10) days of the commencement of such delay notify the
Authorized Representative in writing of the causes of the delay.
The Authorized Representative 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 Authorized Representative such delay is justified. The
Authorized Representative's determination shall be final and
conclusive upon the parties to this Agreement. In no event shall
Manager be entitled to recover damages against the City for any
delay in the performance of this Agreement, however caused,
Manager's sole remedy being extension of the Agreement pursuant to
this Section.
5 . 3 Term. Unless earlier terminated in accordance with
Section 9 . 7 or 4 .2 of this Agreement, the Term of this Agreement
shall be for five (5) years, which shall commence July 1, 1998, and
shall terminate June 30, 2003 . Notwithstanding the foregoing,
6271014084-010713155657.A n07/21198 .12
Manager or city shall have an annual right to terminate this
Agreement, with or without cause and without penalty, on or before
April 1, either party may give written notice to the other of the
intent to terminate this Agreement within ninety (90) days of the
date of such written notice. Such written notice shall be
effective immediately upon the conclusion of the ninety (90) days,
6_0 COORDINATION OF WOaK
6. 1 Representatives of Manager.
(a) Executive Director. Manager shall select an
Executive Director in the manner described in this Section to
act as the principal and representative of Manager authorized
to act in it's behalf with respect to the work specified herein
and make all decisions in connection therewith. The Executive
Director's duties, include but not are not limited to, . the
supervision of ` i4anager's compliance with all duties and
obligations imposed upon Manager under this Agreement. The
Executive Director shall perform his supervisorial duties from
the city of Palm Springs. The Executive Director shall be
selected in the following manner:
(1) In response to solicitation for the
position of Executive Director to oversee the operations
of Palm Springs Tourism, City and Manager have received
a significant number of applications and/or resumes for
such position;
(2) Manager, in conjunction with the Advisory
Committee created under this Agreement and the Visitor
& Promotion commission, agrees to consult with and
select prospective candidates who have submitted their
application and/or resumes to City and Manager and
purport to have qualifications necessary to oversee the
operation of Palm Springs Tourism in the manner, extent
and pursuant to the quality standards required under
this Agreement;
(3) After- the consultation and selection of a
prospective candidate, as required under Subsection (2)
immediately above, Manager shall recommend to the Palm
Springs city council such prospective candidate to
oversee the operation of Palm Springs Tourism as
required under this Agreement, at which time, or as soon
thereafter as the Council may act,. Council shall, in its
sole discretion, duly approve or disapprovc such
prospective candidate;
(4) If Council disapproves the prospective
candidate pursuant to Subsection (3) immediately above,
Manager shall consult with another prospective
candidate, as required under Subsection (2) in this
6VIO14WA 01CY713155637A A(M2119R 13
Section 6 . 1 (a) , and resubmit such selection to the
Council pursuant. to Subsection (3) immediately above .
Manager shall continue the process required under this
Section 6 . 1 (a) until such time as the Council approves
the prospective candidate .
(b) Expertise of Manager' s Representatives . It is
expressly understood that the experience, knowledge,
capability and reputation of the Executive Director is a
substantial inducement for City to enter into this Agreement .
Therefore, the Executive Director shall be responsible during
the term of this Agreement for directing all activities of
Manager and devoting sufficient time to personally supervise
the services hereunder. For purposes of this Agreement, the
Executive Director may not be replaced nor may their
responsibilities be substantially reduced by Manager without
the express written approval of City. -
6 . 2 Authorized Representative . The Authorized
Representative shall be the City Manager of City. It shall be the
Manager' s responsibility to assure that the Authorized
Representative is kept informed of the progress of the performance
of the services and the Manager shall refer any decisions which
must be made by City to the Authorized Representative . Unless
otherwise specified herein, any approval of City required hereunder
shall mean the approval of the Authorized Representative. The
Authorized Representative shall have authority to sign all
documents on behalf of the City required hereunder to carry out the
terms of this Agreement .
6 . 3 Prohibition Against Subcontracting or Assignment .
The experience, knowledge, capability and reputation of Manager,
its principals and employees were a substantial inducement for the
City to enter into this Agreement . Therefore, Manager 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 Manager, 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 Manager or any surety of
Manager of any liability hereunder without the express consent of
City.
The City' s policy is to encourage the awarding of subcontracts
to persons or entities with offices located within the juris-
dictional boundaries of the City of Palm Springs and, if none are
available, to persons or entities with offices located in the
627/014094-0107/3155657.4 a07/17/98 14
Coachella Valley ( "Local Subcontractors") . Manager 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 Manager 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 Manager' s efforts in
determining whether it will consent to a particular subcontractor.
Manager shall keep evidence of such good faith efforts and copies
of all contracts and subcontracts hereunder for the period
specified in Section 8 .2 .
6 .4 Independent Contractor. Neither the City nor any
of its employees shall have any control over the manner, mode or
means by which Manager, 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 Manager' s employees, servants, representatives or
agents, or in determining or establishing their number,
compensation or hours of service . Manager 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 . Manager shall not a]: 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 Manager in its business or otherwise or
a joint venturer or a member of any joint enterprise with Manager.
7 . 0 INSURANCE AND INDEMNIFICATION
7 . 1 Insurance . The Manager 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 . The policy of insurance shall be in an
amount not less than either (i) a combined single limit of
$5, 000, 000 . 00 for bodily injury, death and property damage or (ii)
bodily injury limits of $1, 000, 000 . 00 per person, $2, 500, 000 . 00 per
occurrence and $2, 500, 000 . 00 products and completed operations and
property damage limits of $1, 000, 000 . 00 .
(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 Manager and the City
627/014084-0107/3155657.4 a07/17198 is
against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or any
persons retained by the Manager in the course of carrying out the
work or services contemplated in this Agreement.
(c) Automotive Insurance. A policy of
comprehensive automobile liability insurance written on a per
occurrence basis in an amount not less than either (i.) bodily
injury liability limits of $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 (ii) 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. All
of said policies of insurance shall provide that said insurance may
not be amended or cancelled without providing thirty (30) days
Prior written notice by registered mail to the City_ in the event
any of said policies of insurance are cancelled, the Manager shall,
Prior to the cancellation date,, submit new evidence of insurance in
conformance with this Section 7 . 1 to the Authorized Representative_
No work or services under this Agreement shall commence until the
Manager 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.
The Manager agrees that the provisions of this Section 7 . 1
shall not be construed as limiting in any way the extent to which
the Manager may be held responsible for the payment of damages to
any persons or property resulting from the Manager's activities or
the activities of any person or persons for which the Manager is
otherwise responsible.
In the event the Manager subcontracts any portion of the work
in compliance with Section 6. 3 of this Agreement, the contract
between the Manager and such subcontractor shall require the
subcontractor to maintain the same . policies of insurance that the
Manager is required to maintain pursuant to this Section 7 . 1.
7 . 2 Indemnification.
Each party (herein "indemnifying party") agrees to indemnify
the other, its officers, directors, partners, owners, 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,
62v0144is4Aim1315565'7.4 .m7121199 16
omissions or liabilities, that may he asserted or claimed by any
person, firm or entity arising out of or in connection with the
negligent acts or omissions o'E the indemnifying party, its agents,
employees, subcontractors, or invitees, provided for herein, or
arising from the indemnifying party' s negligent performance of or
failure to perform any term, provision, covenant or condition of
this Agreement.
Each party (herein "indemnifying party") agrees to indemnify
the other, its officers, directors, partners, owners, 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, that may be asserted by any of the
indemnifying party' s present or former employees or agents
concerning the -Indemnifying party's alleged acts or omissions
during such time as the employee or agent was in the indemnifying
party' s employ.
7 .3 Sufficiency of Insurer. Insurance required by this
.Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the
most recent edition of Best Rating Guide, The Key Rating Guide or
in the Federal Register, and only if they are of a financial
category Class VII or better, unless such requirements are waived
by the 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 Manager agrees that the minimum limits of the
insurance policies required by this Section 5 may be changed
accordingly upon receipt of written notice from the Director of
Administrative Services; provided that the Manager 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.
8.0 RECORDS AND REPORTS
3 . 1 Reports . Manager shall periodically prepare and
submit to the Authorized Representative such reports concerning the
performance of the services required by this Agreement as the
Authorized Representative shall require. Manager hereby
acknowledges that the City is greatly concerned about the cost of
work and services to he performed pursuant to this }Agreement . For
this reason, Manager agrees that if Manager .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 Manager is providing design services,
the cost of the project being designed, Manager shall promptly
notify the Authorized Representative of said fact, circumstance,
technique or event and the estimated increased or decreased cost
6rI0I40M-010n31S5,W,s .47n2/98 17
related thereto and, if Manager is providing design services, the
estimated increased or decreased cost estimate for the project
being designed.
8 . 2 Records . Manager 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 Authorized Representative to evaluate the performance of
such services . The Authorized Representative shall have full and
free access to such books and records at all times during normal
business hours of City, including the right to inspect, copy, audit
and make records and transcripts from such records . Such records
shall be maintained for a period of three (3) years following
completion of -the services hereunder, and the City shall have
access to such records in the event any audit is required.
8 .3 Ownership of Documents . All drawings,
specifications, reports, , records, documents and other materials
prepared by Manager, 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 Authorized
Representative or upon the termination of this Agreement, and
Manager 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
Manager will be at the City' s sole risk and without liability to
Manager, and the City shall indemnify the Manager for all damages
resulting therefrom. Manager may retain copies of such documents
for its own use . Manager shall have an unrestricted right to use
the concepts embodied therein.
8 .4 Release of Documents. The drawings,
specifications, reports, records, documents and other materials
prepared by Manager in the performance of services under this
Agreement shall not be released publicly without the prior written
approval of the Authorized Representative .
9 . 0 ENFORCEMENT OF AGREEMENT
9 . 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 Manager covenants
and agrees to submit to the personal jurisdiction of such court in
the event of such action.
9 . 2 Events of Default . Each of the following shall
constitute an "Event of Default" under this Agreement :
627/014094-0107/3155657.4 a07/17/98 18
(a) Any failure to perform any material obligation
under this Agreement, including, without limitation, Manager' s
failure to meet the responsibilities of Manager set out in Section
2 .2 herein and the performance standards set out in Section 2 . 3
herein, if the failure to perform is not cured within the times set
forth at Section 9 . 3 herein; or
(b) Any failure or delay by Manager in performing
its duties under the Convention Center Management Agreement which
failure or delay constitutes a default, as that term is defined in
the Convention Center Agreement at Section 11 . 1 therein, which is
not cured by Manager within the time specified at Section 11 . 3 in
the Convention Center Agreement, shall constitute a default under
this Agreement.
9 . 3 Disputes . In the event of any dispute arising
under this Agreement, the injured party shall notify the injuring
party in writing of its contentions by submitting a claim therefor.
The injured party shall continue performing its obligations
hereunder so long as the injuring party commences to cure such
default within ten (10) days of service of such notice and
completes the cure of such default within forty-five (45) days
after service of the notice, or such longer period as may be
permitted by the injured 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 Manager' s right to
terminate this Agreement without cause pursuant to Section 5 . 3 .
9 .4 Waiver. No delay or omission in the exercise of
any right or remedy by a nondefaulting 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 .
9 . 5 Rights and Remedies are Cumulative. Except with
respect to rights and remedies expressly declared to be exclusive
in this Agreement, the ric[hts 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.
9 . 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
6271014094-0107/3155657.4 a07/17/98 19
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 .
9 . 7 Termination for Default of Manager. If termination
is due to an Event of Default of the Manager to fulfill its
obligations under this Agreement, City may, after compliance with
the provisions of Section 9 .3 , take over the work and prosecute the
same to completion by contract or otherwise, and the Manager 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
Manager for the purpose of set-off or partial payment of the
amounts owed the City as previously stated.
9 . 8 Surrender of Facilities and Improvements . Upon
expiration or termination,of this Agreement, Manager shall promptly
surrender to City any facility and its improvements, regardless of
whether the improvements were made by Manager, its employees or
agents, operated under this Agreement, leaving all equipment,
supplies, books and records, manuals and inventories that are the
property of City or that have been purchased with the Tourism
3udget or from funds made available by City. All funds and
accounts maintained by Manager in the Depository required to be
maintained under this Agreement shall be transferred to City within
five (5) business days of the expiration or termination of this
Agreement .
9 . 9 Damage or Destruction. Either party may terminate
this Agreement in the event that any facility operated under this
Agreement is destroyed or a significant portion thereof is damaged
from any cause, whether or not covered by insurance .
9 . 10 Termination by Cit . In the event of termination
by City in accordance with this Agreement, City shall pay Manager
all fees earned to the date of City' s termination.
10 . 0 CITY OFFICERS AM) EMPLOYEES : NON-DISCRIMINATION
10 . 1 Non-liability of City Officers and Emnloyees . No
officer or employee of the City shall be personally liable to the
Manager, 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
Manager or to its successor, or for breach of any obligation of the
terms of this Agreement .
10 .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
627/014084-0107/3155657.4 a07/17/98 20
Manager 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 .
10 .3 Covenant Against Discrimination. Manager 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
Agreement . Manager 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.
11 . 0 MISCELLANEOUS PROVISIONS
11 . 1 Notice. Any notice, demand, request, document,
consent, approval, or communication either party desires or is
required to give to the other party or any other person shall be in
writing and either served personally or sent by prepaid,
first-class mail, in the case of the City, to the City Manager and
to the attention of the Authorized Representative, CITY OF PALM
SPRINGS, P .O. Box 2743 , Palm Springs, California 92263 , and in the
case of the Manager, to the person at the address designated on the
execution page of this Agreement . Either party may change its
address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated at the time
personally delivered or in seventy-two (72) hours from the time of
mailing if mailed as provided in this Section.
11 . 2 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 .
11 . 3 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..
11 . 4 Integration: Amendment . It is understood that
there are no oral agreements between the parties hereto affecting
627/014084-0107/3155657.4 a07/17/98 21
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.
11 . 5 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 . .
11 . 6 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.
11 . 7 Corporate Authoritv. 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.
11 . 8 Non-Solicitation. The City covenants and agrees
that neither it nor its Authorized Representative shall, during the
Term hereof or for a period of twenty-four (24) months following
the expiration or early termination of this Agreement, hire,
employ, solicit for hire, or engage in any manner or for any
purpose any person who has served as Executive Director during the
Term of this Agreement or any other of LMI' s "senior personnel" to
the Executive Director or who are designated by LMI in writing as
"senior personnel" for purposes of this Agreement .
6271014084-0107/3155657.4 a07/17/98 22
IN WITNESS WHEREOF, the parties have executed and entered into
this Agreement as of the date first written above .
CITY:
CITY PALM SPRINGS,
a mu icipal corporat '
By:_
City anager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City At( o ney
MANAGER:
LMI/HHI, LTD, a Texas limited
partnership, dba Leisure Management
Y T H r U i.w CIOU14011 International
By:
Name : Mike McGee
Title : Chairman of the Board
Address: Eleven Greenway Plaza
Suite 3000
Houston, Texas 77046
[END OF SIGNATURES]
627/014M-0107/3155657.4 a07/17/98 23
U �
EXHIBIT "A"
PRE-EXISTING AGREEMENTS
DATE CONTRACTING PARTY DESCRIPTION OF CONTRACT
1. November 6, 1996 Visa U.S.A., :[nc. Agreement No. 3728, wherein
contractor agrees to sponsor a
consumer program for services
provided in the City by various
City merchants.
2. July 1, 1997 First Public Relations Ltd. Agreement No. 3822, wherein
contractor agrees to provide
public relations and marketing
services to the City.
3. June 18, 1997 Desert Publications, Inc. Agreement No. 3810, wherein the
contractor agrees to publish a
semi-annual advertising-supported
Palm Springs Visitor Guide.
627/014084-0107/3155657.4 07117/98 24
Aw
.CERTIFICATE NUMBER:
&H MARSH,&MGLENNAN,INC ;: ERTIFI1CATE OF; INSURAN
+W,. . . # 24176
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTCR OF INFORMATION ONLY AND CONFERS
J&H Marsh & McLennan TX, Inc. NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN
Suite 4000 II��'' "`°`"R FE, y �p D� THE POLICY. THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE
1000 Louisiana " COVERAGE AFFORDED BY THE POLICIES LISTED HEREIN.
Houston, TX 77002 .ws��. COMPANIES AFFORDING COVERAGE
COMPANY A TWIN CITY FIRE INSURANCE CO
C 171II' IfT� LIJX LETTER
INSURED COMPANY B HARTFORD INSURANCE CO OF MW
LMI HHI, Ltd. LETTER
dba Leisure Management Int' 1
'-cOMPANv C HARTFORD FIRE INSURANCE CO
11 Greenway Plaza, Suite 300,0 � LETTER!
Houston, TX 77046
d w' OERNY D HARTFORD INSURANCE CO SE (FL)
f
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE-LI&T HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY
BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES LISTED HEREIN IS SUBJECT TO ALL THE TERMS, CONDITIONS AND EXCLUSIONS
OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
00 TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS
LTR DATE(MM/DO/YY) DATE(MM/DD/Y1')
GENERAL LABILITY 46CESSS8935 (GL) 3/10/98 3/10/99 GENERAL AGGREGATE $ 2000000
X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG $ 2000000
CLAIMS MADEFX]OCCUR. PERSONAL&ADV INJURY $ 1000000
OWNER'S CONTRACTOR'S PROT. EACH OCCURRENCE $ 1000000
FIRE DAMAGE(Any one Ilre) $ 1000000
MED.EXPENSE(Any one person) $ FLOOD
AUTOMOBILE WIBILTY 46UENGT2906 (TX) 3710798 3 10/99 COMBINED SINGLE LIMIT $ 1000000
C X ANY AUTO 46UENGTIS49 (O/S) 3/10/98 3/10/99
ALL OWNED AUTOS BODILY INJURY(Per person) $
SCHEDULED AUTOS -
-- - --- — -- - - --- _ EODILY INJURY-( eP r acciHent)
HIRED AUTOS
NON-OWNED AUTOS PROPERTY DAMAGE $
GARAGE LIABILITY
AUTO ONLY-FA ACCIDENT $
ANY AUTO
OTHER THAN AUTO ONLY
EACH ACCIDENT $
AGGREGATE $
EXCESS LIABILITY 46HUSL5064 3/10/98 3/10/99 EACH OCCURRENCE $ 5000000
}[ UMBRELLA FORM- - - -- - - - -- - - -- - - — -- --AGGREGATE- ---- --$ - - 5000000
OTHER THAN UMBRELLA FORM
WORKERS'COMPENSATIONAND 46WBDR3415 3/10/98 3/10/99 STATUTORY LIMITS X
EMPLOYERS UABIUTY EACH ACCIDENT Is 1000000
DISEASE-POLICY LIMIT 1$ 1000000
DISEASE-EACH EMPLOYEE Is 1000000
OTHER
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
(SEE REVERSE AND/OR ATTACHED)
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE POLICIES LISTED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE
City Of Palm Springs THEREOF,THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL 30 DAYSWRITTEN
E TO THE CERTIFICATE HOLDER NAMED HEREIN,BUT FAILURE TO MAIL SUCH NOTICE
Attn: City Clerk NOTIC
BOX 27 43 SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER AFFORDING
P.O.
Palm BoxSpr 2743ngs, CA 92263-2743 COVERAGE, ITS AGENTS OR REPRESENTATIVES, ISSUER OF THIS CERTIFICATE.
JS.H MARSH&MCLENNAN,INCORPORATED VOK
BY: All
rc
MIMI I (i/95) VALID AS OF: 1/2 0/99
PAGE: 1 OF 2
.:'f
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
CERTIFICATE #24176 (CONTINUED) PW
INSURED : LMI HHI, Ltd.
HOLDER : City of Palm Springs
Attn: City Clerk
P.O. Box 2743
Palm Springs, CA 92263-2743
The Certificate Holder is included as an Additional Insured (except as
respects all coverage afforded by the Workers' Compensation Policy) and
granted a Waiver of Subrogation as required by written contract, but only
for liability arising out of the operations of the Named Insured.
PAGE : ' 2 OF 2
7�
0 VAL *City, of Palm Springs
? Department of Administrative Services
Risk Management Division _
`g1%FORN MEMORANDUMZ� ��``
RECEIVEL
Date: October 12, 1998 ACT 13 199E
To: Judy Sumich, City Clerk el' r—r
From: Nancy Jo McIntosh, Risk Manager
Subject. Tourism Contract with LMI- #3964
The City has agreed to provide General Liability Insurance in the amount.of$5,000,000 covering LMI in
their Tourism Contract. This has met with the City Manager's and OMB's approvals.
LMI will need to arrange for separate automobile and workers' compensation insurance directly with their
Corporate Office.
If you have any questions, please feel free to phone me at extension 8218.
Nancy Jo McI 4osh
Risk Manager
cc: Bill Clawson