HomeMy WebLinkAboutContract 1859 AGREEMENT FOR BOOKING AND MANAGEMENT SERVICES
BY AND BETWEEN
THE CITY OF CATHEDRAL CITY,
LOCATIONS UNLIMITED INC.
AND
LOCATIONS 760
This Agreement for Booking and Management Services ("Agreement") is entered
into as of this 13th day of February, 2020 ("Effective Date") by and between the City of
Cathedral City, a California Charter ("City"), Locations Unlimited, Inc., a California
corporation and Locations 760, a Sole Proprietor(Locations Unlimited Inc. and Locations
760 are hereinafter collectively referred to as "Service Provider"). City and Service
Provider are sometimes hereinafter individually referred to as "Party" and hereinafter
collectively referred to as the "Parties."
RECITALS
WHEREAS, City is the owner of certain improved real property known as the
Cathedral City Community Amphitheater, located in Cathedral City, County of Riverside,
State of California, which is more particularly described on Exhibit "A" attached hereto
and incorporated herein by reference ("Property" or "Amphitheater"); and
WHEREAS, the City has sought the performance of the services defined and
described particularly in Section 2 of this Agreement; and
WHEREAS, Service Provider was selected through direct negotiation by the City
to perform those services.
WHEREAS, Service Provider shall market the Amphitheater to provide for the
booking of Events and in coordination with the City shall assist in executing the
appropriate contract(s) between the City and Amphitheater Clients. Service Provider shall
also oversee Events that occur at the Amphitheater.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and agreements
made by the Parties and contained herein and for other consideration, the value and
adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. DEFINITIONS
(a) "Amphitheater Client" means an individual, business, organization or City
department, which is obtained, procured and scheduled by Service Provider and is
granted use of the Amphitheater for an Event or Event Day which may be open to the
general public or to a private audience.
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(b) "City Liaison" means the City Manager or his or her designee, who will
administer the Agreement for the City and who will interface with Service Provider to
facilitate open communication between the Parties with respect to the booking and
management of the Amphitheater.
(c) "City Marks" shall mean any name or mark that (1) contains, in whole or
part, name(s) and/or mark(s) (including service marks, trademarks, names, titles,
descriptions, slogans, insignias, emblems or logos) of the City of Cathedral City; or (2)
imparts the color of authority of the City of Cathedral City. City Marks shall not include the
official Seal of the City of Cathedral City.
(d) "Event" means any activity that occurs at Amphitheater whether open to the
general public or exclusive to a private audience.
(e) "Event Days" means any day in which Amphitheater is in use for any
purpose to support any type of an Event. This includes but is not limited to, rehearsal,
technical staging of lights and sound, set up and strike of stage and actual performance
days. For the avoidance of doubt an Event Day shall include days,which cannot be rented
to other Amphitheater Client(s) that are work days used to support a coming Event.
Notwithstanding the foregoing, rehearsals or similar activities are not deemed to be an
Event but are deemed to be Event Days.
(f) "Performing Artist" means any individual or group who perform any of a
wide range of performance disciplines including, without limitation to, a play, musical,
dance or similar performance Event for an audience at Amphitheater.
SECTION 2. GENERAL SCOPE; ENGAGEMENT OF SERVICE PROVIDER
The City hereby engages Service Provider to promote and book Performing Artists
the Cathedral City Community Amphitheater subject to the terms and conditions of this
Agreement and Service Provider hereby accepts such engagement.
SECTION 3. SERVICE PROVIDER SCOPE OF SERVICES
(a) Scope of Services. Service Provider shall provide for the management and
operation of Amphitheater as set forth in Exhibit "B" [Scope of Services].
(b) Changes to the Scope of Services. Parties may modify the Services by
mutual agreement, in writing signed by the duly authorized representative of each Party.
SECTION 4. MUTUAL OBLIGATIONS
The Parties shall work together to review issues and other matters related to the
smooth, orderly and efficient booking and management of the Amphitheater. The Parties
shall develop a proposed plan for remediation of any such issues. Service Provider
agrees to work in good faith to ensure that the City obtains the best fee for each booked
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Event. Each Service Provider agrees that they will not, directly or indirectly, take any
action to solicit, initiate, encourage, or assist prospective Amphitheater Clients in
quotation/price shopping, deception or manipulation of the Parties, collusion with a Party,
or other practices seeking to gain an unfair advantage over the City.
SECTION 5. BILLING AND PAYMENT
(a) Invoice. Service Provider shall provide an invoice to the City detailing
charges for work performed within thirty (30) days after the completion of an Event.
(b) Payment. City shall pay Service Provider one thousand dollars ($1,000.00)
for each completed Event that generates at least two thousand five hundred dollars
($2,500.00) but no more than five thousand dollars ($5,000.00) in revenue. Further, City
shall pay Service Provider twenty percent of the revenue received for each completed
Event that generates five thousand and one dollars ($5,001.00) or more. No
compensation shall be provided for Events that generate less than two thousand five
hundred dollars ($2,500.00) in revenue. Payment for all services shall be due to Service
Provider within thirty (30) days of City's receipt of required invoice.
(c) Fee Disputes. In the event the City disputes any particular item or amount
on an invoice, City shall provide Service Provider with written notice within seven (7)days
of receipt of the invoice, stating the particulars of the dispute. The Parties shall mutually
cooperate to resolve any such disputes in good faith and by mutual agreement. All items
not in dispute shall be paid as provided for above.
SECTION 6. EXPENSES PAID BY SERVICE PROVIDER
The Service Provider's business and travel expenses are to be paid by the Service
Provider and not by the City.
SECTION 7. CITY MARKS
(a) Use of City Marks. During the term of this Agreement, and subject to the
terms and conditions of this Agreement, the City grants to Service Provider a limited, non-
exclusive, non-transferable, worldwide, royalty free license to use the City Marks, as
defined in Section 1, in connection with the operation and promotion of the Amphitheater
and for the purposes of fulfilling Service Providers obligations under this Agreement(each
a "Licensed Use" or collectively, the "Licensed Uses"). No other or different rights are
granted hereunder to Service Provider and Service Provider shall have no right to use
any of the City Marks apart from the Licensed Uses. Other than the express licenses
granted herein with respect to the City Marks, nothing herein will grant Service Provider
any other right, title or interest in the City Marks, which are reserved by the City.
(b) Conditions of Use. Service Provider agrees that the City Marks will always
be reproduced as shown in Exhibit "C" [City Marks] in their entirety with no alterations,
obstructions or modifications. Service Provider agrees that it will comply with any
additional trademark usage and guidelines that City may communicate to Service
Provider from time to time. Service Provider shall be required to obtain written approval
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of City Liaison prior to each use of the City Marks on any products, materials, or premiums
designed, manufactured, marketed or sold under or pursuant to this Agreement or in
connection with any marketing or promotional materials under this Agreement provided
such use: (i) is a Licensed Use and (ii) the appearance (e.g. form, color, type, style,
orientation, etc.) of the City Marks is unaltered.
SECTION 8. TERM OF AGREEMENT
Subject to the provisions of Section 17 "Termination" of this Agreement, the initial
term of this Agreement shall be for a period of one (1) year commencing on the Effective
Date first ascribed above. This Agreement shall renew automatically for a subsequent
one (1) year term unless either Party provides written notice of nonrenewal at least ninety
(90) days before the end of the initial term.
SECTION 9. SERVICE PROVIDER REPRESENTATIONS
(a) Standard of Performance. Service Provider shall perform services with the
degree, skill and care observed by national firms performing the same or similar services.
(b) Compliance with Laws. Service Provider shall use the standard of care in
its profession to comply with all applicable federal, state, and local laws, codes,
ordinances, and regulations. Service Provider represents and warrants to City that it has
and shall, at its sole cost and expense, keep in effect or obtain at all times during the term
of this Agreement any licenses, permits, insurance and approvals which are legally
required for Service Provider to practice its profession.
(c) No Discrimination. Service Provider shall not discriminate, in any way, in
the employment of persons to perform the Services in violation of any federal or state law
prohibiting discrimination in employment, including based on the race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, of any person, except as provided under California Government Code
Section 12940.
(d) Independent Contractor. Service Provider is not to be considered an agent
or employee of City for any purpose, and neither Service Provider nor any employees of
Service Provider are entitled to any of the benefits that City provides for City's employees.
It is understood that Service Provider is free to contract for similar services to be
performed for other cities, persons or entities during the term of the Agreement. Service
Provider shall be fully responsible for all income, social security or other taxes or
deductions relating to the services it performs for City.
SECTION 10. CITY REPRESENTATIONS
(a) Authority. City represents and warrants that it owns and controls the
Amphitheater. City has the authority to enter into this Agreement with Service Provider
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for the booking, management and operation of the Amphitheater and for the production
of entertainment, performing arts, school and community events.
(b) Maintenance and Repair of the Amphitheater. City shall maintain, or cause
to be maintained the buildings, appurtenances and grounds of the Amphitheater in
substantial compliance with applicable laws, statutes, ordinances and regulations in
accordance with commercial reasonable standards, including such maintenance as,
without limitation thereof, electrical and plumbing, equipment, carpentry, and such other
normal maintenance and repair work as may be reasonably necessary.
(c) Acknowledgment of Risk. City acknowledges that the production and
promotion of Events in the entertainment and cultural arts industry have associated
inherent risks, which include but are not limited to financial and other general liabilities.
Both Parties also acknowledge that a decision to produce entertainment, recreation,
cultural Events, or any specific Event, may at times be made by City for reasons other
than financial profit potential and that at times City may elect to produce Events which will
require financial subsidy in order to achieve other community service objectives.
SECTION 11. EXCLUSIVE PEPSI BEVERAGE AGREEMENT
During the term of this Agreement, Service Provider shall notify all Amphitheater
Clients and vendors of the City's Beverage Agreement with Pepsi Co., attached hereto
as Exhibit "D". All Amphitheater Clients and vendors booked through Service Provider
shall purchase soda products and other covered beverages using the City's account code
per the City's Beverage Agreement with Pepsi, where applicable. All rebates earned for
sale of covered beverages made on the Property will be paid to City and Service Provider
shall not have claim to these funds.
SECTION 12. CONCESSIONAIRE AGREEMENT
During the term of this Agreement, Service Provider shall notify all Amphitheater
Clients and vendors of the City's Concessionaire Agreement with Kick Back Cinemas,
LLC, attached hereto as Exhibit "E" where applicable.
SECTION 13. PERSONAL SERVICES NOT REQUIRED
(a) Employees. Service Provider shall have sole responsibility and authority in
the selection, hiring, compensation, benefits, training, supervision, discipline and/or
discharge of all Service Provider employees. For all purposes, all Service Provider
employees shall be deemed to be only employees of Service Provider and not the City.
In the event that City requests or requires training unique to the City, City shall reimburse
Service Provider for costs associated with employee time and expenses of employees to
attend such training.
(b) No Co-Employment. In consideration of the liabilities that may accrue to a
co-employer, Parties agree that they shall not be co-employers. Service Provider
employee(s) assigned to work at the Amphitheater shall work exclusively for Service
Provider. City shall have no authority in the selection, hiring, compensation, benefits,
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supervision, discipline and/or discharge of any employee of Service Provider. City Project
Liaison and or City personnel shall not direct Service Provider employees.
SECTION 14. NO SET WORK HOURS
The Service Provider has no set hours of work. There is no requirement that the
Service Provider work full time or otherwise account for work hours.
SECTION 15. SOCIAL MEDIA; OWNERSHIP OF SOCIAL MEDIA CONTACTS
Service Provider may, in fulfillment of the obligations set forth in this Agreement,
create and/or use social media accounts (including, but not limited to email addresses,
blogs, Twitter, Facebook, YouTube, or other social media networks) for the promotion of
the Amphitheater. City reserves the right to amend, limit and/or terminate Service
Provider's authority to use social media accounts promoting the Amphitheater at any time.
Service Provider shall not have access to City controlled social media accounts. Any
social media contacts, including "followers" or "friends" that are acquired through
accounts created by the Service Provider (including, but not limited to email addresses,
blogs, Twitter, Facebook, YouTube, or other social media networks) used in promotion of
the Amphitheater are the property of the Service Provider.
SECTION 16. INDEMNITY
To the fullest extent permitted by law, the Parties shall defend, indemnify, and hold
harmless each other and their respective officers, elected officials, employees, agents,
and volunteers (collectively"Indemnitees") from and against any and all claims, loss, cost,
damage, injury, expense and liability of every kind, nature and description (including,
without limitation, fines, penalties, incidental and consequential damages, reasonable
court costs and attorneys' fees, litigation expenses and fees of expert consultants or
expert witnesses incurred in connection therewith, and costs of investigation), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by the Parties. Neither termination of this
Agreement nor completion of the services shall release the Parties from their obligations
under this Agreement, as long as the event giving rise to the claim, loss, cost, damage,
injury, expense or liability occurred prior to the effective date of any such termination or
completion.
SECTION 17. TERMINATION
(a) City Termination. City may terminate this Agreement, with or without cause,
at any time by giving thirty (30) days written notice of termination to Service Provider. In
the event such notice is given, Service Provider shall cease immediately all work in
progress.
(b) Suspension. City may temporarily suspend this Agreement, at no additional
cost to City, provided that Service Provider is given written notice of temporary
suspension. If City gives such notice of temporary suspension, Service Provider shall
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immediately suspend its activities under this Agreement. A temporary suspension may
be issued concurrent with the notice of termination provided for in this Section.
(c) Service Provider Termination. Service Provider may terminate this
Agreement for cause at any time upon thirty(30)days written notice of termination to City.
(d) Performance of Material Obligations. If either Service Provider or City fail to
perform any material obligation under this Agreement, then, in addition to any other
remedies, either Service Provider, or City may terminate this Agreement immediately
upon written notice.
(e) Final Invoice. Upon termination of this Agreement by either Service Provider
or City, all property belonging exclusively to City which is in Service Provider's possession
shall be returned to City. Design Professional shall furnish to City a final invoice for work
performed by Service Provider, as set forth in Section 5 of this Agreement. This final
invoice shall be reviewed and paid in the same manner as set forth in Section 5 of this
Agreement.
SECTION 18. EFFECT OF TERMINATION
(a) Records and Executory Contracts. Upon termination of this Agreement, for
any reason, all of the records in the Service Provider's possession pertaining to the
operation of the Amphitheater, together with the supplies, equipment, or other property of
the City in Service Provider's possession shall be delivered to the City.
(b) Booking Contracts. Upon termination of this Agreement, all duties and
obligations of Service Provider with respect to negotiation and booking of an Event shall
cease. In no event shall City have the right to reduce or deduct any of the fees due to
Service Provider under the terms and conditions of this Agreement.
SECTION 19. ASSIGNMENT
Service Provider shall not assign, delegate, or transfer any interest in this
Agreement nor the performance of any Service Provider's obligations hereunder, without
the prior written consent of the City.
SECTION 20. NOTICES
All notices and other communications required or permitted to be given hereunder
shall be in writing and shall be sent by: (a) certified or registered mail, postage prepaid,
return receipt requested, (b) personal delivery, or (c) a recognized overnight carrier that
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provides proof of delivery, and shall be addressed as follows:
If to City: If to Service Provider:
City of Cathedral City Locations Unlimited LLC
Attn: City Manager Attn: Thies Lemke
68700 Avenida Lalo Guerrero 41106 Yucca Lane
Cathedral City, California 92234 Bermuda Dunes, California 92203
Locations 760
Attn: Richard "Kip" Serafin
1775 E. Palm Canyon Drive,
Suite 110-250
Palm Springs, California 92264
Notices shall be deemed effective upon receipt or rejection only.
SECTION 21. LAW TO GOVERN; VENUE
This Agreement shall be governed by the laws of the State of California. In the
event of litigation between the Parties, venue in state trial courts shall take place in the
Superior Court of the State of California for the County of Riverside, or if in federal court
the United States District Court for the Central District of California, Eastern Division.
SECTION 22. AMENDMENT
Any amendment to this Agreement will be effective only if it is in writing signed by
all Parties to this Agreement.
SECTION 23. OWNERSHIP OF DOCUMENTS
All plans, studies, documents and other writings, including working notes and
internal documents, prepared by and for Service Provider, its officers, employees and
agents and sub-Service Providers in the course of implementing this Agreement, shall
become the property of City upon payment to Service Provider, and City shall have the
sole right to use such materials in its discretion without further compensation to Service
Provider or to any other Party. Service Provider shall, at Service Provider's expense,
provide such reports, plans, studies, documents and other writings to City upon written
request. All documents prepared by Service Provider are confidential and shall be
maintained to preserve their confidential nature. Release of any such documents to third
parties shall only be made upon written consent of City.
SECTION 24. WAIVER
Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver of a subsequent breach of the same or any other provision under this
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Agreement.
SECTION 25. SEVERABILITY
If any term, condition or covenant of this Agreement is declared or determined by
any court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall not be affected thereby and the Agreement shall be
read and construed without the invalid, void or unenforceable provision(s).
SECTION 26. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with respect to the
matters set forth herein. Any amendments, modifications, or changes to this Agreement
shall be in writing and signed by both Parties.
[Signatures on Following Page]
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CITY OF CATHEDRAL CITY: LOCATIONS UNLIMITED INC.
4
By: ! 4..; A By: A
harles P. McClendon
City Manager Its: arr
By:
Its:
LOCATIONS 760
By: rA L
MEV MOW
Its: �
Approved as to form:
BURKE, WILLIAMS & SO" -NSEN, LLP
By:
Eric S. ail
City Attorney
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EXHIBIT "A"
DEPICTION OF PROPERTY
Cathedral City Community Amphitheater
68-526 Avenida Lalo Guerrero, Cathedral City, CA 92234
Located on the Northeast corner of Cathedral Canyon Drive and Avenida Lalo Guerrero
fit.
•
i
t
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EXHIBIT "B"
SCOPE OF SERVICES
Development of Booking and Marketing Systems:
1) Develop and establish a professional booking and marketing system designed to
provide for the on-going administration of the Amphitheater.
Amphitheater Management and Consultation:
1) Represent the City of Cathedral City with regard to the use of the Amphitheater by third
parties for the production of public and private events.
2) Assist in the management, upon consultation with the City Liaison, of the master
calendar of Events for Amphitheater including, but not limited to, performance, rehearsal,
technical and production needs for all Events.
3) Confirm whether the Amphitheater Clients would like operation of Concession Stand
by Kickback Cinemas, LLC during an Event.
Marketing and Business Development:
1) Business development and marketing for the Amphitheater operation including the
development of technical specification brochures, sales materials, website, on-line
marketing strategies, social media and other required collateral materials.
Coordination, Planning and Communication with City:
1) Recommend operating budgets, programming models, rental rates, operating policies,
business strategies and changes to the Business Plan, where necessary, to the City. Final
approval shall be provided by the City Council.
2) Coordinate all reporting requirements for the City Council and the City Manager
through the City Liaison.
3) Meet regularly with the City Liaison.
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EXHIBIT "C"
CITY MARKS
411 Cathedral City
111
Cathedral City
CATHEDRAL CITY
COMMUNITY
AMPHITHEATER
EXHIBIT "D"
PEPSI BEVERAGE AGREEMENT
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PEPSI BEVERAGES COMPANY
BEVERAGE SALES AGREEMENT
This sets forth the agreement(`Agreement")between Bottling Group,LLC,a Delaware limited
liability company, and its affiliates and/or respective subsidiaries collectively comprising Pepsi
Beverages
e a g s Company with en office located at 6659 Sycamore Canyon Blvd., Riverside, CA
92 ("Pepsi") and Cathedral City, with its principal place of business at 68700 Avenue Laic
Guerrero, Cathedral City, CA 92234 on its own behalf, on behalf of its affiliates and wholly-
owned , and on behalf of its individual franchisees
licensees, if any (the
which. The support
described below is in lieu of any other discounts, allowances or
rebates to might otherwise be entitled fiom time to time. When fully
mon.P will constitute a binding obligation of both patties until expiration or
Pepsi Customer are sometimes hereinafter individually referred to as"Party"or
hereinafter collectively referred to as the"Parties."
Definitions
As used in this Agreement, the following capitalized terms have the respective
meanings
assigned thereto below.
Be"Beverage or "Beverages" means all carbonated and non-carbonated, non-alcoholic drinks,
ever dispensed during the Term of the Agreement `Beverage" or "Beverages" excludes
bottled water,alcoholic beverages and cannabis infused beverages.
"Cases" means cases of Packaged Products (as defined herein) purchased by Customer from
Pepsi during the Teem,initially delivered in quantities of 24 plastic bottles aluminum cans,glass
bottles(or equalized 24 pack cases,e.g., two 12-pack cases), eight 2-liter plastic bottles,or such
the other Tasize,
quantity and type of containers as Pepsi may make available from time to time during
"Competitive Products"means any and all Beverages other than the Products,
"$4 t'means equipment loaned by Pepsi to Customer to dispense, store or cool Products
(as defined below),as more fully described in Section 4 herein.
TGallons"means gallons of the Postmix Products purchased by Customer from Pepsi during the
"Outlets" means existin,
rture
nd after-acquired (provided not already under
beverage agreement with rm.
(Pepsi) outletsopt, imaged, leased or apre-existing
franchised eby
Customer under the Cathedral City tradematik[a]as listed in attached Exhibit A(and any related
or similar trademarks, including any successor trademarks) including the parking garages or
other Customer-owned/controlled/operated surrounding areas located at or within those facilities
and shall include any outlet or other facility in Customer's system that may be opened or
acquired by Customer now or in the future, including under different con, and/or trademark
during the Term. This excludes beverages within City Hall,and City park properties or facilities,
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fro PEPSI BEVERAGES COMPANY
unless the Patties mutually agree to identify additional Outlets in an updated Exhibit A.
"Packaged Produce' means Beverages that we sold or distributed by Pepsi in pre-packaged
farm (eg., bottles and cans). A current list of Pepsi's Packaged Products is listed in attached
Exhibit B which may be amended by Pepsi from time to time.
"Postaulx Products"means Beverages sold and/or distributed by Pepsi and used to create and
prepare fountain beverages, frozen carbonated or non-carbonated beverages. A currant list of
Pepsi's Postmix Products is listed in attached Exhibit B which may be amended by Pepsi from
time to time.
"Products"means Poatmix Products,and Packaged Products.
"Yea (s)" means each 12-month period during the Team commencing on the first day of the
Tara or an anniversary thereof
1. Term
The term of this Agreement will commence on December 15,2019 and the term will expire upon
the later of five(5)Years or at such time as Customer's collective purchases of Products meets
or exceeds a volume threshold (the "Volume Threshold") of 12,250 Cases (the "Terse") or if
terminated pursuant to Section 6(B)of this Agreanant.Thus,in the event the Volume Threshold
is not met on or before the date indicated above,then the Tam will automatically extend for the
period of time necessary until the Volume Threshold has been met(the"Automatic Bxtwasian").
Except for applicable Rebates,which may be earned during the Automatic Extension,Pepsi will
not provide any other finding to Customer.
tomer.
2. Performance
This Agreement, including all of Pepsi's support to Customer as described below, is contingent
upon Customer complying,throughout the Term,with all of the following performance criteria:
(A) Exclusivity. Pepsi is the exclusive Beverage supplier to Customer's Outlets. Customer
agrees to take all necessary steps to ensue that the Products are the exclusive Beverages of their
respective types sold, dispensed or otherwise made available, or in any way advertised,
displayed, represented or promoted at or in connection with the Outlets by any method or
through any medium whatsoever (including without limitation print, broadcast, direct mail,
coupons,handbills,displays and signage),whether public or private. The Outlets will not serve,
dispense or otherwise make available or permit the availability at or in any way advertise,
display, represent or promote, Beverage products licensed by, or produced by bottlers licensed
by, The Coca-Cola Company or any affiliate &ereof; or any other supplier of Competitive
Products.
(B) Purchase of Products. Customer agrees to purchase, and require its Outlets and
purchasing representatives to puhrbase,Beverage Products exclusively and directly from Pepsi.
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ed PEPSI BEVERAGES COMMNY
(C) Fountain Products. Customer agrees to use the Postmix Products for use in preparing
the
efou}ain ed bbbeverage products (the
"Fountain PraducIs"): (i) in accordance with the standards
estaepsi and(ii)only immediate or imminent consumption;Customer agrees not
to resell the Postmix Products either to nonaffiliated outlets or to consumers in any form otter
than the Fountain Products.
(D) Ancillary Product. Customer agrees to purchase, and require its purchasing
representatives to purchase all their respective requiremata for carbon dioxide and branded
disposable cups("Ancillary Products")exclusively from Pepsi.
(E) Advertising Rights. Pepsi may advertise and promote its Products in and with respect to
Customer and its Outlets upon mutually agreed to teams and conditions. In addition, Customer
must display appropriate brand identification for each Product served on all menus (ncluding
catering and digital), menu boards and postmix dispensing valves at each of the Outlets
throughout the Tam.
(F) Changes in Outings). Customer will promptly notify Pepsi,in writing, of any Outlet
which is closed, sold or otherwise disposed of during the Term so that the Parties may promptly
update Exhibit A.
(0) Product Mix; Minimum SKU/Braad Requirement. Customer must mandate the
distribution of a minimum core assortment of Products, including a mix of both Postmix
Products and Packaged Products at each of the Outlets throughout the Term, as identified by
Pepsi,based 0n Equipment hype at the Outlets.
(H) Restrictions for Products. The Parties recognize and agree that there are certain
additional territorial restrictions that pertain to the purchase and resale of the Products. To the
extent any prospective Oudet(s) are located outside the territories serviced by Pepsi,then Pepsi
may, upon request by the Customer, use commercially reasonable efforts to facilitate an
agreement between the Pepsi-Cola bottler servicing the applicable territory and the Customer
with terms substantially similar to the terms of this Agreement. Furthermore, Customer agrees
not to distribute or resell the Products, directly or indirectly, outside the territories serviced by
Pepsi and shall cause its purchasing representative to abide by such territorial restrictions.
3. Funding
Provided Customer is not in breach of this Agreanent, Pepsi agrees to provide Customer with
the funding described below.
(A) Annual Sponsorship Support Fonds. Pepsi agrees to provide Customer with annual
sponsorship support funds in the amount of Seven Thousand US Dollars ($7,000), payable to
Customer within ninety(90)days after the later of(1)the first day of the Term or(ii)the signing
of this Agreement by both Parties (the "Armour!Sponsorship Support Mauls"). The Annual
Sponsorship Support Funds are earned by Customer over the Term and may be increased to
include additional Outlets acquired by Customer. In the event of early termination for any
reason other than an uncured material breach by Pepsi pursuant to Section 6(A) herein, the
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led PEPSI BEVERAGES COMPANY
unearned Anneal Sponsorship Support Funds will be repaid to Pepsi pursuant to the terms of
Section 6(B)(i) herein. The funds will used to sponsor the following events listed. $1,000 -
Cathedral City Hot Air Balloon Festival, $1,000 - North Pole Village at Snow Feat, $1,000 -
Movies in the Palk, $1,000 - Taste of Jalisco Festival, $1,000 - Cathedral City LGBT Days,
$1,000-Easter Kidapalooza,$1,000-East Palm Canyon Banner Program.
(B) Marketing Support. Each Year during the Term, Pepsi will provide Customer with
marketing support, valued at up to Two Thousand Five Hundred US Dollars ($2,500)
("Marketing Support'). The Marketing Support will be used and spent by Pepsi to pay for
umbrellas and ice barrels, as mutually agreed to by the Parties. Customer acknowledges and
agrees that unused Marketing Support in any Year will not be carried over to a subsequent Year
and will not be redeemable for a cash payment.
(C) Rebates. Each Year throughout the Term,Pepsi agrees to calculate the total number of
eligible Cases and Gallons purchased by each of the applicable Outlets from Pepsi pursuant to
this Agreement, and will provide Customer with rebates calculated based on applicable rates set
forth below(the"Rebates").The Rebates, as applicable,will be paid by Pepsi within sixty(60)
days after the end of each Year. The Parties agree that Pepsi will not accrue or pay any Rebates
for sales to Outlets that are in breach of the Performance Requirements listed in Section 2 above.
Rebates Ws �iglble Prodnd
$2.00/Gallon All Postmix Products, Crush, Dr Pepper, El Nino
and Upton Iced Tea
$2.00/Case** ; All CSDs as noted in Exhibit B
*The following Products are excluded from Rebates: 12 and 24 oz.CSDs, 16.9 Agaafina
**24-pk or equivalesntte.g.,two(21 12-plc)
(D) Commissions. Pepsi shall provide Customer with commissions, as a percentage of the
actual cash ("cash in bag"or"CM')collected by Pepsi from the Vending Machines placed at
the Outlets, less any applicable government-imposed taxes/fees and deposits, as applicable
("Coate. Such Commissions shall be at the rate(s)set forth below(the"Commission
Rata")and shall be calculated as follows:
(CIB*Commission Rate)–applicable CRV=Commission due
__ Pfadutd Initial fiffiftfrifee
...e` Caaanau isre Rate**
All 20 oz.Corporate CSDs 3.00 35%
20 oz.Gatorade _ 3.00 35%
20 oz.Aquafina 3.00 35% —�
*Pepsi shall have the right to increase vend prices by$0.25 in each of Years 2 through 5.
"*Commission Rates and Vend Prices far new Product will be mutually agreed upon by Pepsi
and Customer
(1) Commissions Payment. Pepsi shall pay Commissions to the Customer within
thirty(30)days of the end of each 4-week accounting period established by Pepsi. Pepsi
shall make all pertinent inent revenue and sales records respecting the Vending Machines
#6575-1
to'I OP PEPSI BEVERAGES COMPANY
available to Customer. Customer agrees that it is responar'ble for reviewing such records
and that any claim or dispute relating to the Commissions must be brought by Customer
in writing within one(1) year of the date such Commissions payment is due. Customer
farther acknowledges and agrees that it shall not receive any Commissions payment from
Pepsi if Commissions fail to reach a certain threshold amount per period or quarter. The
ctuent threshold amounts are$50 per four-week period or$75 per quarter.The threshold
may be revised by Pepsi from time to time.
(2) Chanaa to Commission Rate/Formula. Customer agrees that Pepsi shall have the
right to change the Commission Rate and/or its formula/method for calculating
Commissions as may be required by applicable laws or as reasonably necessary to
respond to legislative acts in order that the Commission Rate remains cost mute.
(3) Vend Price. The initial vend prices and minimum scheduled increases that are
necessary for Customer to qualify for any Commissions are set firth in the Commission
chart above. Customer acknowledges that Pepsi has the right to pass through any
incremental fees, deposits, taxes or other governmentally imposed charges (whether
local, state, federal or judicially imposed on maimfacturers, distributors, consumers or
otherwise).The pass-through of any such governmentally imposed fees,deposits,taxes or
charges on the Products will be in addition to any scheduled Vend Prices increases set
forth herein or notification restrictions that may be specified in this Agreement.
4. Equipment and Service
(A) Equipment Pepsi will loan to the Customer, at no charge, appropriate Equipment for
dispensing the Products at the Outlets. Customer agrees that the Equipment will be exclusively
used to display and merchandise the Products as reasonably determined by Pepsi, and subject to
applicable local law,rule or regulation. Customer will Ad use the Equipment to display, stock,
advertise, sell or maintain any other products(including on the exterior of the Equipment).Title
to such Equipment will remain vested in Pepsi or its affiliate and Customer will ratwu all
Equipment to Pepsi upon expiration or earlier termination of this Agreement. At Pepsi's request,
Customer will provide Pepsi with a written Equipment verification list indicating the asset
number, Equipment type and location of the Equipment loaned to Customer pursuant to this
Agreement To the extent that future technology enbancearents, equipment platfomis or
products to support these platforms are substantially different in scope or composition compared
to existing equipment components and products, Pepsi and Customer mer will work in good faith to
negotiate the economic terms for implementation of the new technology equipment.
(B) Vending Machines. With respect to the vending machine Equipment placed at the
Outlets(the "Vending Machinear"),Pepsi will have the additional responsibility for(i)stocking
the Vending Machines with the Products and(ii)collecting, for its own account,all cash monies
from the Vending Machines and for all related accounting for collected monies. Customer
agrees to provide reasonable assistance to Pepsi in apprehending and prosecuting vandals. Pepsi
shall not be obligated to pay Commissions on documented revenue losses resulting from
vandalism or theft of Product with respect to any Vending Machines. Pepsi shall not be assessed
common area maintenance fees, taxes or other charges based on its occupation of the space
#6575-1
PEPSI BEVERAGES COMPANY
allocated to its Equipment at the Outlets.
(C) Service. Pepsi will, provide, at no charge to Customer, preventative maintenance and
service to the Equipment. Pepsi will also provide Customer with a telephone mamba to request
emergency repairs and receive technical assistance related to the Equipment after business hours.
Pepsi will promptly respond to each Customer request,and will use reasonable efforts to remedy
the related Equipment problem as soon as possible, however because delays in service may be
caused by factors well outside of Pepsi's control, Pepsi's service record will be measured in the
aggregate such that an isolated failure is not a material breach of the Agreement
5. rain
Customer will purchase, and will require that any third parties or purchasing representative for
the Outlets to purchase, Products and Ancillary Products directly and exclusively from Pepsi
pursuant to the pricing and terms and conditions set forth herein.The initial pricing schedule for
Products is set forth on attached Exhibit B,which may be changed by Pepsi from time to time
during the Tenn. Pepsi will be entitled to pass-through any incremental fees, deposits,taxes or
other governmentally imposed charges (whether local, state, federal or judicially imposed on
manufacturers, distributors, consumers or otherwise). The pass-through of any such
govermnemtally imposed fees, deposits, taxes or charges on the Products will not be subject to
any pricing cap or notification restrictions that may be specified in this Agreement.
6. General Terms
(A) Termination far Default Either Party may terminate this Agreement if the other
commits a material breach of this Agreement provided,however,that the terminating Party has
given the other Party written notice of the breach and the other Party has failed to remedy or cure
the breach within thirty(30)days of such notice. If for any reason Customer closes one or more
Outlets or if one or more Outlets breathes the Agreement, then Pepsi shall have the option, in
lieu of termination of the entire Agreement, to (i) adjust Funding in Section 3 commensurate
with the projected decline in volume; (ii)terminate the Agreement only as it pertains to the sold,
closed or breathing Outlet(s); i (iii) obtain an equitable reimbcreement for the portions of
Funding and other costs attributable to such sold,closed or breaching Outlet(s). Notwithstanding
the foregoing,this paragraph will not apply to seasonal Outlet closures with Pepsi prior written
approval,such approval not to be unreasonably withheld.
Remedies. If the Term of this Agreement is terminated early for any reason other than an
uncured material breach by Pepsi pursuant to subsection(A)above,the Customer will surrender
to Pepsi all Equipment provided by Pepsi and will forfeit all Funding not paid as of the date of
termination. In addition,without prejudice to any other right or remedy available to Pepsi,Pepsi
will have the right to immediately seek reimbursement from Customer and the Outlets for the
following
(1) An amount reflecting reimbursement for all Funding previously advanced by
Pepsi but not earned by Customer pursuant to the terms of this Agreement. With regard
to the Annual Sponsorship Support Funds,if any,the amount of such reimbursement will
#6575-1
ad PEPSI BEVERAGES COMPANY
be the result of muhiplying, the Annnral Sponsorship Support Funds by a fraction, the
numerator of which is the number of months remaining in the Year in which the
Agreement is terminated at the time such termination occurs and the denominator of
which is 12(twelve);
(2) An amount reflecting reimbursement for the cost of installation, service and
refurbishing of Equipment provided during the Term and the cost of removal of all
Equipment that has been installed in the Outlets,as applicable;and
(3) An amount as liquidated damages, for lost sales suffixed by Pepsi as a result of
such termination, equal to the sum of (a) the product of$7 multiplied by the projected
number of Gallons of Postmix Products that Customer would have been expected to
purchase during the remainder of the Term based on the Volume Threshold and
Customer's average annualized purchase rate and(b)the product of$10 multiplied by the
projected number of 24-plc case equivalents of Packaged Products that Customer would
have been expected to purchase during the remainder of the Term based on the Volume
Threshold and Customer's average annualized purchase rate.
(C) Expiration. Upon expiration of this Agreement, if Customer has not entered into a
further agreement with Pepsi for the purchase of the Products, Customer will surrender to Pepsi
all Equipment installed in the Outlets.
(1)) Right of Offset Pepsi reserves the right to withhold payments due hereunder as an
offset against amounts not paid by Customer or its Outlets for Products ordered from and
delivered by Pepsi and any and all balances due and payable to Pepsi pursuant to this Agreement
(E) Non-Df selosnre. Except as may otherwise be required by law or legal process or as
reasonably necessary for either Party to enforce its rights hereunder,neither Party will disclose to
unrelated third parties the terms and conditions of this Agreement without the consent of the
other.
(F) Assignment Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or otherwise d by either Party(whether by operation of law
or otherwise)without the prior written consent of the other Party,provided,however,that Pepsi
may assign and transfer this Agreement (m whole and not in part) to an affiliate without the
consent of Customer hereto if such affiliate is (a)capable of hilly performing all obligations of
the assignor hereunder and(b)agrees,in writing to perform all of the obligations and assume all
liabilities of the assignor hereunder. In the event that a third party acquires Customer or
substantially all Outlets or if Customer is acquired or merges with a third party,Customer will,in
connection with such transaction, cause the acquiring party/merged entity, in writing, to ratify
this Agreement and assume all of the obligations of Customer hereunder. In the event that
Customer does not deliver written evidence of such ratification and assumption of this
Agreement by the acquiring party or merged entity within ten(10)days following the closing of
the transaction, Customer will be in breach of this Agreement and Pepsi may, at its option,
specified
termfi�nate this Agreement effective immediately and Customer will pay to Pepsi all sums
in Section 6(B)herein.
#6575-1
tit d°' PEPSI BEVERAGES COMPANY
(G) Governing Law. The laws of the state of California govern all matters arising out of
this Agreement.
(H) Price Discrepancy. Any price discrepancy claim must be submitted to Pepsi within 365
days of the date of the invoice in question. If Customer makes a price discrepancy claim within
90 days of the invoice date, Customer must submit a written request specifying the particular
Product,amount in dispute and reason for the dispute. This request should be addressed to:
Accounts Receivable
Pepsi-Cola Customer Service Center
P.O.Box 10
Winston-Salem,North Carolina 27102
If Customer makes a price discrepancy claim from 91 to 365 days after the date of invoice, in
addition to the written request as specified above, Customer must submit to Pepsi a copy of the
invoice in question,copies of any check remittances pursuant to the invoice in question and any
additional supporting documentation.
(I) Tax. Neither Pepsi nor its affiliates will be responsible for any taxes payable, fees or
other tax liability incurred by Customer in connection with the consideration or any other fees
payable by Pepsi under this Agreement If Pepsi is charged common area maintenance fees,taxes
or other charges related to Pepsi's occupation of the space allocated to its Equipment at the
Outlets,Pepsi may make an adjustment to the consideration provided in Section 4 above to offset
for such costs.
(3) Force Majeure. Pepsi will not be responsible for any delay or lack of delivery resulting
directly or indirectly from any foreign or domestic embargo, product detention, seizure, act of
God, insurrection, war and/or continuance of war, the passage or enactment of any law
ordinance, regulation, ming, or order interfering directly or indirectly with or rendering more
burdensome the purchase, production, delivery or payment hereunder, including the lack of the
usual means of transportation due to foe, flood,explosion,riot, strike or other acts of nature or
man that aro beyond the control of Pepsi or that of the suppliers to Pepsi unless such contingency
is specifically excluded in another part of this Agreement Subject to the provisions below,this
Agreement will be suspended as to both Product and delivery during any of the above force
mgjeure contingencies. Any and all suspended deliveries will resume after such contingencies
cease to exist, if possible, and this Agreement will resume in accordance with its terms,unless
otherwise provided for herein.
(K) Waiver. No failure or delay of either Party to exercise any rights or remedies under this
Agreement will operate as a waiver thereof,nor will any single or partial exercise of any rights
or remedies preclude any further or other exercise of the same or any other rights or remedies.
Any waiver must be in writing and signed by the Party waiving the rights.
1 (L) Relationship of the Parties. The Parties are independent contractors with respect to
each other. Nothing contained in this Agreement creates a joint venture partnership between the
#6575-1
led) PEPSI BEVERAGES COMPANY
Parties.
(M) Construction- Customer and Pepsi acknowledge that both Parties participated equally
in the negotiation of this Agreement and that, accordingly, in interpreting this Agreement, no
weight shall be placed upon which Party hereto or its counsel drafted the provision being
(N) Notices. Any notice which either Party is required or permitted to give hereunder will
be in writing, signed by the notifying Party and will be either delivery by hand or nationally-
recognized overnight courier service or deposited in the United States mail, certified or
registered mail, return receipt requested, postage paid, addressed as follows: If to Customer, to
Bre name and address set forth in the preamble herein. If to Pepsi,to the name and address set
forth in the preamble herein, with a copy thereof to: Pepsi Beverages Company, 1111
Westchester Avenue,White Plains,NY 10604,Attention:Law Department or to such addresses
as the Parties may subsequently provide in writing. Notice will be deemed to have been given
when delivered by hand or nationally recognized overnight courier service, or when received as
evidenced by the return receipt,or the date such notice is first refused,if that be the case.
(0) Right of First Negotiation/Refusal. As of the commencement of this Agreement until
ninety (90) days prior to the expiration of the Term, Customer hereby agrees to grant Pepsi
exclusive negotiation rights with respect to extending the current Agreement or entering into a
new
agreement for Beverage pouring rights at the Outlets upon expiration of the current Term.
If the Parties have not entered into a new agreement by the ninetieth day prior to expiration of
the Term, Customer will be free to enter into discussionshregodations with third parties except
that Customer hereby grants Pepsi the absolute right of first refusal to match any bona fide offers
made by a third party with respect to Beverage pouring rights/sales at the Outlets. Customer will
provide Pepsi with details of any such bona fide offers, and Pepsi will have a fifteen(15) day
window to decide whether it will match such offer and exercise its right of first refusal The
Parties agree that beverage type/category and not brand names will be considered for the
purposes of determining a match. In the event that Pepsi declines to match such offer,or fails to
respond within the fifteen(15)day period,then Customer will be free to enter into an agreement
with any third party based on beans and conditions equal or favorable to those presented to Pepsi
in connection with the notice specified herein.
(P) Distribution Limitations. Pepsi reserves the right to limit quantities, withhold or
deduct Funding as en offset to amounts not paid by Customer or terminate this Agreement if
Customer (i) sells Products directly or indirectly for resale outside of the Pepsi's exclusive
territory where the Outlet operates and(1i)purchases Products outside Pepsi's exclusive territory
where the Outlet operates and resells such Products within Pepsi's exclusive territory.
(Q) Entire Agreement. This Agreement contains the entire agreement between the Parties
hereto regarding the subject matter hereof and supersedes all other agreements between the
Parties. This Agreement may be amended or modified only by a writing signed by each of the
Parties.
(R) Representations. The Parties, represents and warrants ants to the other Party that (1) the
#6575-1
PEPSI BEVERAGES COMPANY
execution,delivery and performance of this Agreement will not violate any agreements with, or
rights of; third parties or any statute, rule or regulation applicable to the party or any of its
properties, assets or operations (including without limitation any financial repotting and
disclosure requirements promulgated by the Securities and Exchange Commission) and (2) is
duly authorized and empowered to bind itself to the terms and conditions of this Agreement for
the duration of the Term and(3)it possesses legal authority to eater into and perform the terms
and conditions of this Agreement.
IN WITNESS WHEREOF,the undersigned have caused this Agreement to be duly executed as
of the date set forth below.
Bottling gyp,LLC Cathedral City
1116. ei:(
By. S� By: -(411)-
Print N �'1 �- Print Name:Charles P.McClendon
Title: TS Cz v dv s(8z) Title: City Manager
Date: k 2- \Z \ ZD t Data /l' 2'f—/9
1116575-1
co PEPSI BEVERAGES COMPANY
EXHIBIT A
Customer Oudets
Downtown Festivals
• Snow Fest
• Taste of Jalisco
• Food Truck Mash Up
• Cathedral City LOST Days
• Easter Kidapalooa
• Coachella Valley Battle in the Desert
• Tejano Music Fest
• Halloween Spooktacular
• Cathedral City Hot Air Balloon Fest
• Movies in the Pads
Exclusivity for all events at the Cathedral City Community Amphitheater
One vending machine inside the Cathedral City Community Amphitheater
p6575-1
Co PEPSI BEVERAGES COMPANY
SIT B
Products and Prices
#6575-1
EXHIBIT "E"
CONCESSIONAIRE AGREEMENT
15
rv+)f S)v%
CONCESSIONAIRE AGREEMENT
This Concessionaire Agreement ("Agreement") dated as of the I st day of January, 2020
("Effective Date"), is made and entered into by CITY OF CATHEDRAL CITY, a California
charter city and municipal corporation ("City"), and KICK BACK CINEMAS CATHEDRAL
CITY,LLC, a California limited liability company (`Kick Back Cinemas"). Hereafter, City and
Kick Back Cinemas may sometimes be referred to individually as a "Party," and collectively as
the"Parties."
RECITALS
WHEREAS, City is the owner of certain improved real property known as the Cathedral
City Community Amphitheater, located in Cathedral City, County of Riverside ("County"),
State of California ("State"), which is more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference ("Property");and
WHEREAS, Kick Back Cinemas desires an agreement for exclusive access and use of
portions of the Property for the purpose of conducting the Permitted Activities; and City has
agreed to grant Kick Back Cinemas such access to and use of portions of the Property, subject to
the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are
incorporated herein by this reference, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged. and for the mutual covenants contained
herein,the Parties agree as follows:
1. Definitions. The following terms have the meanings set forth in this Section
wherever used in this Agreement or the attached exhibits:
(a) "City Event" means a function, party. dinner, show, performance, concert,
pageant, parade, play, movie, festival or any other type of event designated by the City as a City
Event, whether wholly or partially organized, hosted, sponsored or otherwise undertaken by the
City on the Property.
(b) "Concessions" mean only Popcorn (including flavored popcorns, such as
but not limited to, kettle corn, caramel corn. and cheese popcorn), hot dogs, nachos, candy,
chips, cookies, fountain or bottled soda. bottled drinks(excluding beer, wine and other beverages
containing alcohol), bottled water, coffee or other pre-packaged items sold at the Mary Pickford
Theatre located at 36850 Pickfair Street, Cathedral City,CA 92234.
(c) "Concession Stand" means that portion of the Property more particularly
described in Exhibit"B," which is attached hereto and incorporated herein by reference, which is
improved with a structure commonly known as the concession stand where patrons can purchase
Concessions.
(d) "Hawk" means to offer for sale by a person walking on the Property,
carrying Concessions for sale in a suitable container and calling aloud in public.
RIV 144849-3950.2765 v5
(e) "Third Party" means a person or group not affiliated with the Parties
renting the Property.
(f) "Third Party Event" means a function, party, dinner, show, performance,
concert, pageant, parade, play,movie, festival or any other type of event designated by the City as
a Third Party Event, whether wholly or partially organized. hosted, sponsored or otherwise
undertaken by a Third Party on the Property.
2. Grant of License; Scope. City hereby grants to Kick Back Cinemas, its officers,
employees, agents,and representatives(collectively,the"Kick Back Cinemas Parties"),a license
to use the Concession Stand solely for the Permitted Uses set forth in Section 3. This license
includes the right of the Kick Back Cinemas Parties to access and have ingress and egress over
the Property to the extent reasonably necessary for operation of the Concession Stand.
(a) No Lease or Easement. Kick Back Cinemas agrees that the rights granted
hereunder do not constitute a lease of any portion of the Property or Concession Stand, nor create
or vest in Kick Back Cinemas or the Kick Back Cinemas Parties a leasehold estate, easement, or
any other real property interest in or to any portion of the Property or Concession Stand.
(b) Needed Access. City shall provide to Kick Back Cinemas such
identification, badges. tickets or passes required for entry into the Property when being utilized for
a City Event for the purpose of permitting the Kick Back Cinema Parties to have access to and to
operate the Concession Stand and to otherwise Hawk Concessions during the City Event. City
shall also provide four(4)complementary tickets to Kick Back Cinemas for each City Event.
3. Permitted Activities. Subject to the terms and conditions set forth in this
Agreement and all local, state and federal laws and regulations, Kick Back Cinemas shall use the
Concession Stand during the Term of this Agreement solely for the following purposes.and for no
other purposes, unless agreed to in writing in advance by City in its sole and absolute discretion
(collectively,the"Permitted Activities"):
(a) During City Events, the sale of Concessions from the Concession Stand,
and the Hawking of Concessions on the Property, unless Hawking is otherwise restricted or
prohibited by the City for specific City Events;
(b) During Third Party Events, the sale of Concessions from the Concession
Stand and the Hawking of Concessions on the Property, unless Hawking is otherwise restricted or
prohibited by the organizer of the Third Party Event.
4. Term. The term of this Agreement will commence on January I, 2020 at 7:00
a.m., or upon the City's issuance of a certificate of occupancy for Property (including the
Concession StandXthe"Commencement Date")and will expire on December 31, 2020 at 11:59
p.m. ("Termination Date"). The period between the Commencement Date and Termination
Date shall be referred to collectively as the"Term."
5. Exclusive Richt to Sell.
(a) At City Events. Subject to City's reserved rights, during the Term, Kick
Back Cinemas shall have the exclusive right to use the Concession Stand to sell Concessions and
to Hawk Concessions(unless otherwise restricted or prohibited by City as provided in Section 3)
2
RIV 14849-3950.2765 v5
on the Property during City Events. At such times as Kick Back Cinemas is operating the
Concession Stand during a City Event, and except as is expressly provided below, no
Concessions (as expressly defined in this Agreement) shall be sold or offered for sale by any
other vendor on the Property. City reserves the right to permit other vendors to sell and offer for
sale during City Events,fountain or bottled soda, bottled drinks, bottled water, and chips(only if
offered as part of a meal combination and not as a single item sale) and any food or consumable
items not included within the definition of Concessions. Such vendors may include food trucks,
local restaurants, caterers and similar vendors.
(b) Reservation of Rights in Event Service is Declined for City Event. In the
event Kick Back Cinemas declines to, or is otherwise unable to, operate the Concession Stand
and/or Hawk Concessions at a City Event as provided in Section 6, City reserves the right to
contract with or otherwise retain the services of another concessionaire to operate the Concession
Stand and to sell and Hawk Concessions during the City Event. In such event, Kick Back
Cinemas shall have no right to payment from City or have any right to any of the revenues
generated from such sales at that specific City Event.
(c) Third Party Events. Kick Back Cinemas may, but is not obligated to, and
does not have any right (exclusive or otherwise) to, operate the Concession Stand, to Hawk
Concessions or to provide catering or other food and beverage services at Third Party Events,but
may do so by arrangement with the organizer of the Third Party Event and with the written
permission of City. City reserves the right to make such arrangements with the organizer of any
Third Party Event for Concessions, Hawking, catering or other food or beverage services as City
and the organizer may agree upon.
6. Right of Refusal. The Parties agree that operation of the Concession Stand by
Kick Back Cinemas at City Events is mutually beneficial to City and Kick Back Cinemas and as
such Kick Back Cinemas shall make its best effort to operate the Concession Stand for City
Events. Kick Back Cinemas shall be notified of booked City Events at least twenty(20)days prior
to the event. Kick Back Cinemas shall have the right to decline to open and operate the
Concession Stand or to Hawk Concessions at any City Event which City anticipates will not draw
at least 100 guests per hour at the City Event.
7. License Fee. During the Term of the Agreement, Kick Back Cinemas shall pay
to City a license fee ("License Fee") in the amount of 40% of the Net Receipts for each City
Event which Kick Back Cinemas operates the Concession Stand. Net Receipts shall be defined
as Gross Sales Receipts of Kick Back Cinemas from all sources at the City Event minus the sum
of sales tax, cost of goods. and a monthly intemet connection for the Concession Stand not to
exceed $200 per month, prorated per City Event per Month. An accounting of sales from each
event, along with documented expenses and payment in U.S. dollars, shall be made within 30
days of the end of each event.
8. Right to Negotiate Product Prices with Third Party. Kickback Cinemas shall
have a right to directly negotiate the price of Concessions with any Third Party of the Property
sold during Third Party Events.
9. Exclusive Pepsi Beverage Agreement. During the Term of the Agreement, Kick
Back Cinemas shall purchase soda products and other covered beverages using the City's
account code per the City's Beverage Agreement with Pepsi Co., attached hereto as Exhibit
"C." Kick Back Cinemas is responsible for all payments of soda products utilized in the
3
RIV*4849-3950-2765 v5
Concession Stand. All rebates earned for sale of covered beverages made on the premises will
be paid to City and Kick Back Cinemas shall not have claim to these funds. Kick Back Cinemas
acknowledges that they have read and understand the terms of the Pepsi Beverage Agreement in
Exhibit"C."
initial
10. Health Permit. Kick Back Cinemas shall be responsible, at its sole expense, to
obtain and maintain a valid health permit for operation of the Concession Stand during the Term of
this Agreement as required by Riverside County, including but not limited to, food handlers cards.
This expense shall not be deducted as an expense from Gross Sales when determining the License
Fee. Fees associated with plan check and construction of the Concession Stand will be the
responsibility of the City.
11. Maintenance and Use of Concession Stand. Kick Back Cinemas agrees to
maintain the Concession Stand in a neat and clean condition free of all debris, trash and refuse.
Kick Back Cinemas shall comply with all applicable laws, codes, ordinances, and other City
requirements specific to the Permitted Activities, or affecting the cleanliness, safety, occupation,
and use of the Concession Stand during the Term. Kick Back Cinemas covenants that no
hazardous, toxic, flammable, or explosive material shall be permitted or released within the
Concession Stand, as further set forth in this Agreement. Kick Back Cinemas shall not commit
or suffer any nuisance upon or about the Concession Stand. In no event may Kick Back Cinemas
conduct business other than as expressly provided in Section 3, above. Kick Back Cinemas shall
be financially responsible for any damage or maintenance costs caused by his/her negligence.
City shall be responsible for routine building maintenance. "Routine building maintenance"
shall include, but not be limited to.structural repairs, plumbing and electrical repairs.
12. Cleaning Deposit. Upon execution of this Agreement by both Parties, Kick
Back Cinemas shall either (a) pay to City the amount of One Thousand Dollars ($1,000.00) as
a security and cleaning deposit ("Deposit"): or (b) install within thirty (30) days inside of the
Concession Stand permanent shelving, counters, and/or equipment or other tenant
improvements of equivalent value to the Deposit amount, all of which must be approved by the
City in writing in advance of installation, and all of which shall be considered to be permanent
fixtures to the Property ("Fixtures"). Upon expiration or termination of this Agreement. if
Kick Back Cinemas fails to timely comply with Section 17 of this Agreement then City may
use the Deposit, or any portion thereof, to pay for the removal of such personal property or
equipment or for the cleaning and repair of the Concession Stand. Any amount of the Deposit
not used by the City shall be returned to Kick Back Cinemas. If no Deposit was made, or if
such Deposit was not adequate to cover the cost of the cleaning or repair,then City may pursue
such legal and equitable remedies against Kick Back Cinemas as are available to City.
13. Modifications to the Proiierty. Kick Back Cinemas may not make any material
or permanent modifications to the Concession Stand without the City's prior written approval,
which City may give or withhold in its sole and absolute discretion. If approved, all work
undertaken by Kick Back Cinemas or its contractors, subcontractors and other agents in
connection with the modifications shall be undertaken and completed in a good and workmanlike
manner by professional, licensed and qualified personnel and contractors. Any fixtures installed
by Kick Back Cinemas that cannot be removed without damage to the Property,or that remain on
the Property after the expiration or earlier termination of this Agreement shall, at City's option
and without payment or other compensation to Kick Back Cinemas, become the sole property of
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City upon such expiration or termination. Any non-affixed equipment and all furnishings shall
be retrieved by Kick Back Cinemas at the end of the Term and Kick Back Cinemas shall fully
repair any damage caused by such removal.
14. Provided Equipment.
(a) City shall provide at its own expense, within the Concession Stand for use
by Kick Back Cinemas the following:an ice machine, Pepsi Soda Towers,power plugs,electricity,
intemet service,water,hot water, sewer, restroom, menu board signage, and a shelf on the exterior
of the Concession Stand for condiments.
(b) Kick Back Cinemas shall provide at its own expense. point of sale
terminals, needed interior shelving and tables, hot dog grills, microwave oven or portable
convection oven, popcorn popper. cheese machines, condiment dispensers, and any other needed
equipment that may be used to sell Concessions not identified in subsection (a)above.
15. Maintenance of Equipment. During the Term of the Agreement Kick Back
Cinemas shall be responsible for maintaining and cleaning of City's equipment in the Concession
Stand.
16. Utilities. The cost of all utilities will remain the responsibility of City.
17. Surrender; Obligation to Remove Personal Property. Upon the expiration or
earlier termination of this Agreement. Kick Back Cinemas shall surrender the Agreement to
City and return possession of the Property to City in substantially the same condition as it
exists on the Effective Date. Kick Back Cinemas shall also be responsible for removing any
and all personal property or equipment belonging to Kick Back Cinemas and to leave
Concession Stand in a neat and clean condition.
18. Insurance. From and after the Commencement Date.and continuing thereafter
until the expiration or sooner termination of the Term, Kick Back Cinemas shall carry and
maintain, at its sole cost and expense, the following types of insurance in the amounts specified
and, in the form hereinafter provided for:
(a) Commercial or comprehensive general liability insurance (including
bodily injury and property damage) in an amount of not less than a single limit per occurrence of
One Million Dollars ($1,000,000)and One Million Dollars($1,000,000)aggregate, insuring City
and its principals, officers, employees. agents, contractors, lenders, and insurers (collectively,
"City Parties") against any and all loss and liability arising out of Kick Back Cinemas' or the
Kick Back Cinemas Parties' use of the Concession Stand.
(b) Workers' compensation for Kick Back Cinemas' employees in the amount
required by law.
(c) Any other form of insurance for risks and/or perils against which a prudent
person would protect itself and as are customarily obtained by Cities of similar operations in the
State of California, including fire and casualty insurance, and/or increases in the amounts of
coverage under any or all of the liability or other insurance policies carried by Kick Back
Cinemas to the extent commercially reasonable and typically obtained by Cities of similar
operations.
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(d) As an express condition precedent to Kick Back Cinemas' first use of the
Concession Stand for any purpose, Kick Back Cinemas shall furnish to City properly executed
certificates of insurance and endorsements to those policies as required herein, and copies of its
policies of insurance. Such policies shall clearly evidence all coverage required of Kick Back
Cinemas and hereunder shall have commercially reasonable deductibles and shall provide that
such insurance shall not be materially changed. terminated or allowed to expire at any time
during the Term. All policies obtained by Kick Back Cinemas must be primary and non-
contributing with any policies that City may elect to obtain and must contain waiver of
subrogation provisions acceptable to City. All policies required hereunder must be endorsed to
name City and the City Parties as additional insureds and copies of those endorsements must be
provided to City. All policies shall be issued by insurers qualified to do business in the State of
California whose financial strength is acceptable to City in its reasonable discretion and shall be
in a form reasonably satisfactory to City.
(e) Kick Back Cinemas acknowledges that neither it nor any of the Kick Back
Cinemas Parties will be subject to coverage under any policy of insurance that City may elect(in
its sole and absolute discretion)to obtain.
19. Indemnification.
(a) General Indemnification. Except to the extent attributable to City's sole
gross negligence or willful misconduct, City shall not be liable to Kick Back Cinemas or Kick
Back Cinemas Parties for any damage to Kick Back Cinemas or Kick Back Cinemas Parties (or
to Kick Back Cinemas' or the Kick Back Cinemas Parties' property)from any cause whatsoever,
including, without limitation, theft, mysterious disappearance, rodents, vermin and acts of God.
Kick Back Cinemas and Kick Back Cinemas Parties shall jointly and severably indemnify',
protect, defend and hold harmless the Property, Concession Stand, City or City Parties from and
against any and all actual or alleged claims, and/or damages, liens, judgments, penalties.
attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in
connection with, a Kick Back Cinemas Default or the use and/or occupancy of the Concession
Stand by Kick Back Cinemas or the Kick Back Cinemas Parties or any act or omission of Kick
Back Cinemas or the Kick Back Cinemas Parties. If any action or proceeding is brought against
City or City Parties by reason of any of the foregoing matters, Kick Back Cinemas shall, upon
notice, defend the same at Kick Back Cinemas' sole expense by counsel reasonably satisfactory
to City. The indemnification provided for in this Section shall survive the expiration or
termination of the Agreement granted herein as to matters occurring or accruing during the Term
or by reason of Kick Back Cinemas' or the Kick Back Cinemas' Parties' occupancy or use of the
Property.
20. Compliance with Applicable Laws, Rules, and Regulations. Kick Back
Cinemas represents, warrants, and agrees that it shall use and occupy the Concession Stand in
compliance with all applicable laws, statutes, ordinances, rules, regulations. orders and
requirements in effect during the Term, or any part of the Term hereof, which regulate use or
occupancy by Kick Back Cinemas of the Concession Stand or the conduct of the Permitted
Activities. Kick Back Cinemas represents, warrants, and agrees that it and the Kick Back
Cinemas Parties shall use and occupy the Concession Stand in compliance with all applicable
Environmental Laws (defined below). Kick Back Cinemas further warrants and agrees that it
shall remediate and clean, to the extent required by Environmental Laws, applicable to its or the
Kick Back Cinemas Parties' use of the Concession Stand. any spills or releases of Hazardous
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Substances (defined below), to the extent caused or contributed to by Kick Back Cinemas, or the
Kick Back Cinemas Parties, or their respective agents, Kick Back Cinemas, invitees, and
successors and assigns' use or occupancy of the Concession Stand.
(a) "Environmental Laws" shall mean all federal, state, local, or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any
government authority regulating. relating to, or imposing liability or standards of conduct
concerning any Hazardous Substance (as hereinafter defined), or pertaining to occupational
health or industrial hygiene (and only to the extent that the occupational health or industrial
hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the
Concession Stand), occupational or environmental conditions on, under, or about the Concession
Stand. as now or may at any later time be in effect, including without limitation, the
Comprehensive Environmental Response,Compensation and Liability Act of 1980("CERCLA")
[42 U.S.C.A §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 ("RCRA")
[42 U.S.C.A §& 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution
Control Act ("FWPCA") [33 U.S.C.A §§ 1251 et seq.]; the Toxic Substances Control Act
("TSCA") [15 U.S.C.A §§ 2601 et seq.]; the Federal Insecticide, Fungicide, Rodenticide Act [7
U.S.C.A &§ 136 et seq.]; the Superfund Amendments and Reauthorization Act 142 U.S.C.A §&
9601 et seq.]; the Clean Air Act [42 U.S.C.A §§ 7401 et seq.]; the Safe Drinking Water Act [42
U.S.C.A §§ 300f et seq.]: the Solid Waste Disposal Act [42 U.S.C.A §§ 6901 et seq.]; the
Surface Mining Control and Reclamation Act [30 U.S.C.A && 1201 et seq.]; the Emergency
Planning and Community Right-to-Know Act [42 U.S.C.A §§ 11001 et seq.]; the Occupational
Safety and Health Act [29 U.S.C.A §§ 655 and 657]; the California Underground Storage of
Hazardous Substances Act [Health & Saf. Code §§ 25280 et seq.]; the California Hazardous
Substances Account Act [Health & Saf. Code &§ 25300 et seq.]; the California Hazardous Waste
Control Act [Health & Saf. Code §& 25100 et seq.]; the California Safe Drinking Water and
Toxic Enforcement Act [Health & Saf. Code §§ 25249.5 et seq.]; the Porter-Cologne Water
Quality Act [Wat. Code && 13000 et seq.] together with any amendments of or regulations
promulgated under the statutes cited above and any other federal, state, or local law, statute,
ordinance, or regulation now in effect or later enacted that pertains to occupational health or
industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws,
ordinances, or regulations relate to Hazardous Substances on, under, or about the Concession
Stand, or the regulation or protection of the environment, including ambient air, soil, soil vapor,
groundwater, surface water,or land use.
(b) "Hazardous Substances" shall mean and include (a)those substances
included within the definitions of "hazardous substance," "hazardous waste," "hazardous
material," "toxic substance," "solid waste," or "pollutant or contaminant" in CERCLA, RCRA,
TSCA, or under any other Environmental Law; (b)those substances listed in the United States
Department of Transportation (DOT) Table [49 C.F.R. 172.101], or by the Environmental
Protection Agency (EPA), or any successor agency, as hazardous substances [40 C.F.R. Part
302]; (c)other substances, materials, and wastes that are or become regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations; and (d)any material, waste,
or substance that is (i)a petroleum or refined petroleum product, (ii)asbestos,
(iii)polychlorinated biphenyl, (iv)designated as a hazardous substance pursuant to 33 U.S.C.A
1321 or listed pursuant to 33 U.S.C.A § 1317, (v) a flammable explosive, or (vi)a radioactive
material.
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21. Events of Default; Termination. The material breach of any provision of this
Agreement by Kick Back Cinemas shall constitute a default and material breach of this
Agreement ("Default"). In the event of a Default by Kick Back Cinemas, City (in addition to
any other remedies available at law or in equity), at its option,and without further notice to Kick
Back Cinemas, shall have the right to (i) terminate the Agreement and all rights of Kick Back
Cinemas in or to the Property; (ii) take full possession of the Property; and (iii) remove all of
Kick Back Cinemas' equipment, facilities and other personal property from City's Property and
either deliver the same at Kick Back Cinemas' cost or place it in storage for Kick Back Cinemas'
account and give Kick Back Cinemas notice of the location of the same. In such event, neither
Party shall have any further rights or obligations hereunder.
22. Non-Assignment. This Agreement shall not be assigned or otherwise transferred
by Kick Back Cinemas, nor may any portion of the Property sublicensed by Kick Back Cinemas.
without City's prior written approval. which City may withhold in its sole and absolute discretion.
23. Notices. All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be sent by: (a)certified or registered mail. postage
prepaid, return receipt requested, (b)personal delivery, or(c)a recognized overnight carrier that
provides proof of delivery, and shall be addressed as follows:
If to City : If to Kick Back Cinemas:
City of Cathedral City Kick Back Cinemas Cathedral City, L.LC
Attn:City Kick Back Cinemas Attn: Damon Rubio
68-700 Avenida Lalo Guerrero 354 Rimhurst Court
Cathedral City, CA 92234 Oceanside, CA 92058
Notices shall be deemed effective upon receipt or rejection only.
24. No Recordation. -phis Agreement may not be recorded.
25. Severability. If any provision of this Agreement is found by any court of
competent jurisdiction to be invalid, illegal,or unenforceable, then such portion shall be deemed
severed from this Agreement and the Parties shall negotiate in good faith to modify this
Agreement to fulfill as closely as possible the original intent and purpose of this Agreement.
26. Entire Agreement; Amendment. This Agreement contains the entire agreement
between the Parties with respect to the subject matter herein and supersedes any and all prior or
contemporaneous negotiations. correspondence, or oral or written agreements between the
Parties. No supplement, amendment, or modification of any provision of this Agreement shall
be effective unless it is in writing and executed by both Parties.
27. Independent Contractor. In the operation of the Concession Stand granted by
this Agreement. Kick Back Cinemas is an independent contractor and is not an agent or
employee of City. Kick Back Cinemas, its officers, employees, agents, and subcontractors, if
any, shall have no power to bind or commit City to any decision or course of action, and shall
not represent to any person or business that they have such power. Kick Back Cinemas has and
shall retain the right to exercise full control of the supervision of the services and over the
employment, direction, compensation and discharge of all persons assisting Kick Back Cinemas
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in the performance of this Agreement. Kick Back Cinemas shall be solely responsible for all
matters relating to the payment of its employees, including compliance with social security and
income tax withholding, worker's compensation insurance and all other regulations governing
such matters.
28. Records and Audits. Kick Back Cinemas shall permit City and its authorized
representatives to inspect and examine Kick Back Cinemas' books, records, accounts. and any
and all data relevant to this Agreement at any reasonable time for the purpose of auditing and
verifying statements, invoices, or bills submitted by Kick Back Cinemas pursuant to this
Agreement and shall provide such assistance as may be reasonably required in the course of such
inspection. City further reserves the right to examine and re-examine said books, records,
accounts, and data during the three (3) year period following the termination of this Agreement
and Kick Back Cinemas shall in no event dispose of, destroy, alter or mutilate said books,
records, accounts and data in any manner whatsoever for three (3) years after the termination of
this Agreement.
29. Counterparts. This Agreement may be signed in multiple counterparts, each of
which shall be deemed an original, but all of which, taken together, shall constitute one and the
same Agreement.
30. Governing Law. This Agreement shall be governed by and construed in
accordance with the procedural and substantive laws of the State of California. without regard to
its conflicts of laws principles. In the event of litigation between the Parties, venue in state trial
courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a
U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
31. Attorneys' Fees. In the event of a suit by either Party against the other arising
out of this Agreement, the prevailing Party shall be entitled to recover from the other Party all
reasonable costs and expenses of suit, including attorneys' fees and the fees of other
professionals.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
"CITY ": "KICK BACK CINEMAS":
City o C. . ..ral Cit , / / Kic ' , inemas Cathedral City, LLC
. 1/ ,
- . I . L B
Charles P. McClendon Name: P: L_.,. S ,„
City Manager Its: Qv..Zg ,._
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EXHIBIT"A"
DEPICTION OF PROPERTY
Cathedral City Community Amphitheater
68-562 Avenida Lalo Guerrero,Cathedral City,CA 92234
Located on the Northeast corner of Cathedral Canyon drive and Avenida Lalo Guerrero
,100
RIV#4849-3950-2765 v5
EXHIBIT"B"
CONCESSION STAND AREA
Concession Stand located within the Cathedral City Community Amphitheater located at
68-562 Avenida Lab Guerrero,Cathedral City,CA 92234
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