HomeMy WebLinkAboutContract 1969 AGREEMENT FOR BOOKING AND MANAGEMENT SERVICES
BY AND BETWEEN
THE CITY OF CATHEDRAL CITY,
LOCATIONS UNLIMITED INC.
This Agreement for Booking and Management Services ("Agreement") is entered
into as of this 11th day of May, 2022 ("Effective Date") by and between the City of
Cathedral City, a California Charter ("City"), Locations Unlimited, Inc., a California
corporation, hereinafter referred to as "Service Provider"). City and Service Provider
are sometimes hereinafter individuallyreferred 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, it is the intent of the Parties that Service Provider will I market the
Amphitheater to potential Amphitheater Clients, handle the booking of Events for
Amphitheater Clients procured by Service Provider, and, in coordination with the City,
will assist in having Amphitheater Clients execute the appropriate contract(s) between
the City and Amphitheater Clients and will oversee the Events of Amphitheater Clients
booked by Service Provider.
WHEREAS, it is understood by Service Provider that it is not the exclusive
booking agent for the Amphitheater, that City has retained the services of another
booking agent that will be marketing and booking additional Amphitheater Clients and
will be responsible for managing the Events of Amphitheater Clients that were procured
by that other booking agent.
WHEREAS, it is also understood by Service Provider that City may, but is not
obligated to, from time to time, receive leads from potential Amphitheater Clients ("City
Leads"), and that City will provide City Leads to each Service Provider on an alternating
basis.
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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, for-profit entity,
which is obtained, procured and scheduled by Service Provider and is granted use of
the Amphitheater for an Event or Event Daywhich maybe open to thegeneral public or
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exclusive to a private audience. Solely for the purposes of this Agreement,
Amphitheater Client shall not include any non-profit or charitable organization duly
organized under California and/or federal law (including any IRC section 501(c)
organization) that has not contacted the Service Provider directly. The City, any City
department, or any instrumentality or agency of the City retains the right to obtain,
procure, schedule and manage its own events and not-for-profit community events.
(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.
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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 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.
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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
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 two (2) years 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
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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
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
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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,
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.
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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 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 mayterminate 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.
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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 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
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.
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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
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.
By: By:
Charles P. McClendon
City Manager Its: Aria LeM '
By:
Its:
Approved as to form:
BURKE, WILLIAMS & SOR S ;LLP
By:
Eric S. Vail, City A orney
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1
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
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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 subject to the terms
and conditions of the Agreement.
Amphitheater Management and Consultation:
1) Represent the City of Cathedral City with regard to the use of the Amphitheater
by potential Amphitheater Clients for the production of 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 private Events or those others
designated by City.
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,
in coordination with City.
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
At Cathedral City
111
Cathedral City
CATHEDRAL CITY
COMMUNITY
AMPHITHEATER
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EXHIBIT "D"
PEPSI BEVERAGE AGREEMENT
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EXHIBIT "E"
CONCESSIONAIRE AGREEMENT
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