1 GROVE OFANAHEIM
CONCESSIONS AGREEMENT
This Concessions Agreement (this "Agreement") dated for reference purposes as of________________2024, is entered into between the City of Anaheim , a municipal corporation and charter city under the laws of the State of California ("Owner") and OC Sports & Entertainment, LLC , a California limited liability company ("Manager'') with reference to the following facts:
RECITALS
A. Owner is owner of the real property and improvements commonly known as the "Grove of Anaheim," located at 2200 East Katella Avenue, in the City of Anaheim, County of Orange, California (collectively with the Personal Property, the ''Facility"). The Facility is used for conce rts, corporate and private events, and other uses; and
B. Owner holds fee title to portions of that certain real property located within the City of Anaheim, California, generally known as the "Sportstown Site", within which the Facility is located; and
C. Owner issued a Request for Proposals (“RFP”) on May 10, 2024 , including subsequent addendums thereto, for the management of the Facility and which RFP is attached hereto as Exhibit “B,” and incorporated herein by reference; and
D. In response to the RFP, Manager submitted a proposal dated July 8, 2024; and
E. Manager has expertise in all aspects of managing live theater venues comparable to the Facility, including coordinating concerts, events and entertainment productions, booking and promoting acts and events, coordinating events with food and beverage operators and otherwise managing all theater operations; and
F. Owner and Manager desire to provide for Manager's operation of that Facility on the terms set forth in this Agreement Capitalized terms not otherwise defined in this Agreement have the meaning set forth in Exhibit "A" attached and incorporated by this reference.
A G R E E M E N T
1. License to Operate.
(a) Owner grants Manager, and Manager accepts, a license to operate the Facility, on the terms set forth in this Agreement. Manager shall supervise and direct the management and operation of the Facility in accordance with this Agreement. Manager shall perform its duties in a manner that maintains the Facility and its facilities, equipment and services as a first -class theater Facility. Manager shal l apply prudent and reasonable business practices in Owner's and Manager's best interests in operating, renting and managing the Facility.
(b) Manager accepts the premises in its present condition and acknowledges that it has inspected the Facility and aware of its existing conditions.
(c) For ninety (90) days following execution of this Agreement, and notwithstanding the definition of "Operating Expense" set forth in this Agreement, Manager shall be entitled to use its and its Affiliates' staff to facilitate the transition of management of the Facility to the Manager. Manager will
2 be allowed to charge the costs of such staff as an Operating Expense at a reasonable amount as agreed by Manager and Owner for the following positions: ( 1) general manager, (2) operations manager, (3) production (stage) manager, (4) sales/marketing manager, and, (5) finance/box office personnel. Manager shall not charge the staff costs of booking staff not employed solely at the Facility.
2. Term.
2.1 Initial Term.
The term of this Agreement (the ''Term") commences on January 1, 2025 (the "Effective Date") and continues in effect to and including December 31, 2027, unless sooner terminated as provided in Sections 2.3 or 2.4 below. Following the execution of this Agreement on behalf of the Owner, the parties shall attach Schedule I to this Agreement setting forth the actual Effective Date.
2.2 Option to Extend.
So long as Manager is not in default of any of its material obligations under this Agreement, Owner and Manager shall have the option to extend this Agreement for two (2) additional one (1) year periods on the same terms and conditions set forth herein, subject to all of the terms and conditions of this Agreement. Owner shall notify Manager not less than six (6) months prior to end of the Initial Term of its intent to renew the Agreement. Manager shall have not more than thirty (30) days to accept or reject such extension of Agreement.
2.4 Other Termination.
(a) This Agreement may be terminated by Owner on not less than one hundred eighty (180) days written notice concurrently with the closing of the sale of the Facility by Owner to a third party only if i) the purchaser is not in the business of operati ng comparable venues, ii) after the closing of the sale, the Facility will be used primarily for purposes other than concerts and private events as currently used or will be demolished; and, iii) on the Accounting Date following the termination. Owner pays to Manager the Early Termination Amount.
(b) Except as otherwise provided below, this Agreement may be terminated by Owner on not less than twelve (12) months written notice (the "Termina tion Notice"), in the event Owner determines that a Termination Event (as defined below) either (i) has occurred or (ii) is expected to occur prior to or within twelve (12) months following the designated Termination Date. As used herein, "Termination Event" means any of the following: (1) Sale or lease of the Facility (but not the underlying land on which it is constructed, referred to as the "Land") to a third party who is not in the business of operating comparable venues and who will use the Facility primarily for purposes other than concerts as it is currently used; OR (2) sale, ground lease or long -term lease of the Land together with the Facility for development or redevelopment of the Land and/or Facility for any purpose; OR (3) development or redevelopment of the Land and/or Facility under the Owner's ownership and direction, for any purpose; OR (4) sale, lease or license of the Facility for use as a performing arts center under the direction of the Owner, a non-profit corporation or foundation promoting the arts, or any public agency, including any venture in which the Owner or a public agency of the State of California is a partner with a non -profit or for-profit entity, for such purposes. "Termination Date" means the date identified by the Owner in the Termination Notice as the date on which the Termination Event is expected to occur, whether or not the Termination Event actually occurs on such date.
3 (c) This Agreement is subject to termination by Owner following the occurrence of an Event of Default in accordance with Section 16.2 below.
2.5 Effect of Termination.
On termination of this Agreement, the Manager shall promptly deliver to Owner possession and control of the Facility and all Personal Property (or comparable property, in substitution for the Personal Property) in a condition no worse than that existing on the Effective Date, reasonable wear and tear excepted, and copies of any and all records in its custody relating to the Facility or to operations under this Agreement. All amounts d ue from either party to the other shall be paid and performed to the date of termination as otherwise provided in this Agreement. The indemnification obligations of the parties under Section 15 shall survive termination of this Agreement.
3. Manager's Duties.
Manager has the exclusive right and responsibility to manage and operate all aspects of the Facility and act as exclusive booking and promotion agent for the Facility subject to all terms and conditions of this Agreement. Without limiting the generality of the foregoing, Manager shall do, and shall have the right to do, the following:
(a) act as exclusive booking agent for the Faci lity (subject to the rights of the Food and Beverage Operator under the Food and Beverage Contract to book certain events under the Manager's direction) and enter into such other and further agreement s as are usual and customary arrangements for booking, promotion, coordination, and staging of all acts and events to be held at the Facility, provided that Manager may not book any events at the Facility to occur between the hours of 2 a.m. and 6 a.m. without the express consent of the Owner, in its sole discretion (which, in reviewing any such request, may consult with the Police Department of the City of Anaheim};
(b) establish, maintain and administer all funds and accounts as provided in this Agreement;
(c) cooperate with Owner with respect to corporate an d private events referred by Owner or relating to functions at the Anaheim Convention Center, and Owner, on its part, shall use commercially reasonable efforts to refer private and corporate events to the Facility;
(d) coordinate the master booking calendar for all events at the Facility;
(e) maintain the Facility and the level of service provided in good condition (normal wear and tear excepted) and to a standard which is at least comparable to the standards of maintenance and service provided at each of Angels Stadium, Honda Center, and the Anaheim Convention Center, including all necessary maintenance and repairs to the Facility;
(f) operate the Facility in a manner generally in accordance with industry custom and practice for a first class theater, and otherwise in accordance with this Agreement;
(g) pay when due all Operating Expenses;
(h) keep the Facility free from liens and encumbrances arising out of or in connection with the acts or omissions of Manager. Manager agrees not to commit, intentionally permit, or intentionally allow any injury or damage to any part of the Facility, premises and appurtenances thereto. If Manager breaches the conditions hereof, Owner is expressly authorized to restore the Facility, p remises or other appurtenances and to make such repairs, as may be necessitated by any such injury or damage, and Manager
4 agrees to pay Owners within ten (10) calendar days after receipt of a statement of the cost of such repairs.
Such expenses shall not be part of the Operating Expenses and shall be Manager’s sole responsibility;
(i) subject to Section 12.4 below to the extent the Parking Area is available for use primarily by employees and patrons of the Facility, manage parking arrangements for customers of the Facility within the Parking Area in accordance with usual and customary practices in accordance with the Parking License Agreement and all applicable Restrictions, and maintain the Parking Area in a clean condition, including sweeping and trash removal, provided that Manager shall not be responsible for capital repairs to the Parking Area; but shall promptly notify Owner of conditions requiring such repairs;
(j) enter into agreements for all necessary and appropriate food and beverage services at the Facility (the "Food and Beverage Concessions Contract") comparable to such services provided under the existing Food and Beverage Contract with the Food and Beverage Operator and administer such agreements as are in existence, from time to time, subject to the reserved rights of O wner as described in Section 20 below;
(k) hire such employees or contract with others for provision of services necessary or desirable for all operations of the Facility which are the responsibility of Manager under this Agreement; Manager agrees that in no event will the employees and other personnel at the Facility be considered employees of the City of Anaheim;
(l) enter into agreements for provision of all goods and services necessary for all staging events at the Facility, including, but not limited to, sound, lighting, stage rigging, dressing area, stage equipment and loading in and loading out and security, provided that no contract may be entered into with an Affiliate of Manager except with the prio r express written consent of Owner, which consen t will not be unreasonably withheld, provided that the terms and conditions of all such arrangements with an Affiliate shall be competitive with the market and shall not be binding on Owner for any period following the expiration of tile Term;
(m) make arrangements for sponsorship and naming rights as otherwise provided in this Agreement;
(n) supervise sales personnel and manage advertising and marketing operations to promote the maximum possible amount of profitable use of the Facility;
(o) maintain business-like relations with all vendors, suppliers and other persons and entities that do business with the Facility, and report any complaint of a serious nature directly to Owner with Manager's recommendations for resolving the complaint;
(p) manage and supervise the effective delivery of quality services to customers and licensees of the Facility, including facilitating delivery of all services ancillary to rental of the Facility;
(q) apply for and obtain all licenses and permits required to conduct t he business of the Facility;
(r) preserve and maintain all Personal Property and all other personal property, furniture, fixtures and equipment acquired for use at the Facility from time to time;
(s) cause the Facility to operate in compliance with all applicable laws and regulations and all customs and practices of a first class Facility in the industries that the Facility serves, and immediately notify Owner in writing of the following: any demand or claim of breach or violation by Owner
5 or Manager of any agreement or law or regulation affecting the Facility; any notice, demand or summons regarding any actual or threatened legal or regulatory action relating to Owner or the Facility; or any notice or communication of any nature, written or oral, that may have a material adverse effect on Owner or any of the Facility, and immediately inform Owner of the remedial action needed for compliance;
(t) consult with the Anaheim Police Department regarding mutually agreed Anaheim Police Department staffing levels at certain Facility events;
(u) during the Term, in the event that smoking occurs in the Facility, and there is resulting damage to the Facility's carpet from such smoking, be solely responsible for the repair of the resulting damage to the Facility carpet;
(v) improvements desired for the Facility or Parking Lots shall be approved by Owner prior to commencement of any work.
4. Business Plan and Budget.
4.1 Budget.
Within ninety (90) days after the Effective Date for the initial Year of Operation (an d within sixty (60) days prior to the expiration of each succeeding Year of Operation during the Term), Manager shall prepare and provide to Owner for its review and approval a proposed business plan, rate schedule for Facility rental and ancillary equipment and services, a marketing plan and an operating budget for the Facility, including estimated income and expenses and estimated Facility profit on a monthly and yearly basis. Manager shall make revisions to the business plan and budget as reasonably requ ested by Owner from time to time.
4.2 Budget Compliance.
Manager shall operate the Facility according to the business plan and budget approved by Owner as described in Section 4.1, provided, however, Manager shall have the right, after consultation with Owner, to amend and revise the business plan and budget from time to time as necessary for the ongoing business and profitability of the Facility.
5. Handling of Funds; Accounting, and Payment of Expenses.
5.1 Handling of Funds.
(a) All funds received or held by Manager in connection with the operation and management of the Facility are subject to this Agreement.
(b) All Revenues, Advance Deposits and other funds received by Manager in connection with operation of the Facility shall be deposited immediately by Manager in a separate account in Manager's name at City National Bank in Los Angeles or a financial institution located within the City of Anaheim, California, acceptable to Owner (the "Operating Account").
(c) all Advance Deposits shall be separately accounted for on the books and records of the Manager and be taken into income at such time as the amounts become non-refundable in accordance with industry custom and practice and/or the specific contract under with each such Advance Deposit is made, as applicable.
6 5.2 Accounting Records.
Manager shall keep complete and accurate books and records of the transactions and operations of the Facility. These books and records shall be kept at the Facility or kept at another location within Los Angeles or Orange Counties and made available at the Facility at Owner's request for review and copying. All books and records shall be available to Owner and its representatives at all times for any purpose and shall be delivered to Owner at any time on Own er's reasonable request. The costs incurred in delivering such records to Owner shall be treated as an Operating Expense.
5.3 Reports.
Within twenty-five (25) days after the end of each calendar month, Manager shall provide Owner a month-to-date and year-to-date report, through the preceding month end, of income and expenses, accounts receivable, reserved bookings and bookings forecast for the upcoming three (3) months, a comparison of income and expenses to the budget approved by Owner, a statement of a ll current working capital advances made by Manager and reimbursed to Manager, a statement of Capital Expenditures, and other statements, reports and information that Owner reasonably requests from time to time.
Capital Asset Schedule Deliverable: The Manager shall deliver to Owner a comprehensive Capital Asset schedule and should be attached to the monthly Financial Statements. The Capital Asset Schedule shall include a detailed inventory of all capital assets to be transferred or utilized in relation to the services provided. The schedule shall list each asset’s description, identification number (tag), acquisition date, original cost, accumulated depreciation, and net book value.
5.4 Expense.
All Operating Expenses shall be paid as due by Manager, w ho shall maintain sufficient liquidity for such purposes.
6. INTENTIONALLY OMMITTED
7. Determination and Distribution of Profits; Allocation of Losses
7.1 Financial Statements.
Within sixty (60) days following the end of each Year of Operation, Manager will provide Owner with financial statements prepared in accordance with generally accepted accounting principles, consistently applied, in a manner with fairly presents an accurate statement of the financial operations of the Facility, containing balance sheets of Manager as of the end of such Year of Operation and statements of cash flow and income for such Year of Operation ("Financial Statements") prepared by Manager, all in reasonable detail. As soon as available and in any event within ninety (90) days after the end of each Year of Operation, Manager shall provide Owner an opinion of an independent certified public accountant selected by Manager and accepted by Owner as to such Financial Statements. The cost of such opinion is an Operating Expense. The date such opinion is delivered to Owner shall be deemed the "Accounting Date".
Manager shall provide to the Owner at the time it provides Financial Statements, a statement of all working capital advances made by Manager and reimbursed to Manager, as well as a statement of the condition of all funds in the Operating Account and the Capital Reserve Fund held under this Agreement, and shall request the independent certified public accountant to review such statement and computation for accuracy, submitting to Owner a description of the results of such review.
7 7.2 Audit Rights.
Owner has the right to inspect and audit all books and records of Manager relating to operations at the Facility or generation of the Financial Statements described above. In the event of a material variance between any audit conducted by the Owner pursuant to this Section and the audit conducted by an independent certified public accountant selected by Manager pursuant to Section 7.1 above, Owner shall give notice of such vari ance to Manager and provide access to Owner's audit report, and Manager and Owner shall then promptly meet and resolve the disputed items, and the Facility books, records and statements shall be adjusted to reflect such resolution. The cost of the Owner's audit shall be borne by the Owner, provided that if the variance in favor of the Owner is greater than the cost of the audit, the cost of the audit shall be reimbursed by Manager and constitute an Operating Expense.
7.3 Distribution of Profit.
Within ten (10) calendar days following the Accounting Date:
(a) Manager shall pay to Owner as a return to Owner on its investment in the Facility an amount equal to Seventy-Five percent (75%) of the Operating Profits for the preceding year of Operation or $750,000 (“Minimum Payment”), whichever is greater; provided however, that the Minimum Payment shall not apply in the event the Facility is shut down due to force majeure event beyond the control Manager for a consecutive period of at least ninety (9 0) days. Manager shall retain Twenty-Five percent (25%) of the Operating Profits.
(b) Manager shall be solely responsible for all Operating Losses.
8. Owner's Use of the Facility.
8.1 Rights Per Year of Operation.
Owner has the right to use the Facility for up to five (5) days per Year of Operation (plus set up time as is reasonably required) at no rental charge, provided that all out -of-pocket costs, including any amounts due under the Food and Beverage Contract for such use, shall be the sole responsibility of Owner. The uses described in the preceding sentence may be booked by Owner up to twelve (12) months in advance.
In addition, Owner has the right to use the Facility on the same te rms from time to time, on available days not otherwise booked, which periods may be booked by Owner no more than thirty (30) days in advance. The parties recognize that the use described in this Section are uses for events of the Owner or public events, and not events, such as concerts of a touring artist, which would otherwise be in competition with the Facility.
In addition, Owner has the right to design ate to Anaheim -based performing arts organizations the use of the Facility for up to five (5) days per year of operation at no rental charge, provided that all out-of-pocket costs, including any amounts due under the Food and Beverage Contract for such use, shall be the sole responsibility of the designated user of the Facility.
8.2 Complimentary Tickets.
For each concert and other event at the Facility for which tickets are made available for sale to the public, the Owner is entitled to eight (8) complimentary tickets , which tickets shall be for contiguous seating at a prime location reasonably agreed by Manager and Owner. In addition, Owner shall
8 be entitled to issue complimentary parking credentials for up to thirty (30) vehicles for use of the Parking Area from time to time.
9. Sponsorship and Advertising Rights.
9.1 Interior Sponsorship and Advertising.
Manager shall have the right to enter into advertising, sponsorship and licensing arrangements with advertisers and sponsors subject to the Owner's reasonable approval of the arrangements, identity of the sponsor and nature of the interior signage. Manager has no right to enter into an agreement with respect to exterior signage or signage clearly visible from the exterior of the Facility except as described in Section 9.2. In this respect, the parties agree that the interior of the Facility shall be maintained so that it is not offensive or objectionable to those desiring to use the Facility for corporate events and parties and private social events, such as weddings, and in entering into arrangements for interior sponsorship and advertising for produc ts not otherwise prohibited by this Agreement, but which may be offensive or objectionable for certain uses, Manager shall maintain the right to remove or cover such signage during such events. The parties agree that advertising and sponsorship arrangement s shall not be entered into with any company which derives substantial revenues from the manufacture, sale or distribution of tobacco products, or gaming services or products or is an economic competitor of the Owner.
9.2 Sponsorship of Sports town Site; Naming Rights.
Owner has the right, subject to the Restrictions, to sell one (1) exterior sponsorship and/or naming right with respect to the overall Sportstown Site, in the Owner's discretion, which sponsorship rights may include exterior signage at the Facility. Owner anticipates the future development of remaining portions of the Sportstown Site and has identified such sponsorship and naming rights as a valuable asset in connection with such future development. In the interim, pending such further development, the Owner has agreed that Manager may market such exterior sponsorship and/or naming right on terms and to a sponsor approved by Owner ("Naming Rights"). The parties agree that Naming Rights shall not be granted to any company (a) which derives substantial revenues from the manufacture, sale or distribution of tobacco products or gaming services or products, (b) which is an economic competitor of Owner, or (c) if such grant is in violation of the terms of the Stadium Lease. Any agreement by Manager granting Naming Rights to a third party shall terminate on or before December 31, 2027, or any extensions thereafter . All amounts received in connection with the Naming Rights, including all rights relating to such name sponsor's exterior and interior signage and related rights, shall be included in the Operating Profits. Owner does not, by this Agreement, authorize any increase in the number of signs at the Facility or on the Sportstown Site, or approve a free-standing sign of any type other than in replacement of signs currently existing at the Facility and then only with Owner's prior written approval.
9.3 Name and Naming Rights of the Facility.
The parties agree that the name of the Facility may be changed as described in Section 9.2 above. The Owner has the right to approve the new name, not to be unreasonably withheld, and at all times has the right to use the name in all public promotions and other public uses without further consent of any person. Novelties containing the name of the project or of the Sportstown Site may be manufactured domestically under licensing arrangements reasonably acceptable to the Owner, with all proceeds included in Revenues. Any new sign for use on the exterior with the new name of the Facility and all new logos for the Facility are subject to Owner's prior written consent, in its sole discretion. Owner and not Manager will have all property rights to such logos.
10. Intentionally Omitted.
9 11. Capital Reserve Fund and Capital Expenditure.
11.1 Capital Reserve Contribution.
The budget established under Section 4.1 above, shall provide, on an annual basis, for funding of a capital reserve amount in accordance with this Section. The Manager shall deposit with Owner, to be held by Owner in a fund for the uses and purposes described in this Agreement (the "Capital Reserve Fund") the Capital Reserve Contribution in respect of each Year of Operation. All withdrawals from the Capital Reserve Fund shall be for capital expenditures or repair and/or maintenance of capita l equipment at the Facility (including equipment owned by Owner and used by the Food and Beverage Operator), approved in writing by the Owner (each, a " Capital Expenditure"). For any Year of Operation in which operating profits are insufficient to fund the Capital Reserve Contribution, Owner and Manager may by mutual agreement waive all or a portion of the required Capital Reserve Contribution for that Year of Operation, and if it is not so waived, shall be paid by Manager. Manager shall be entitled to reimbursement from funds available in the Operating Account for all contributions made by Manager during the current Year of Operation to the Capital Reserve Fund. In addition, all Capital Expenditures made in excess of funds available in the Capital Reserve F und at any time shall reduce t he Capital Reserve Contribution required to be made by Manager for the subsequent Year of Operation on a dollar-for-dollar basis.
Subject to the preceding, the Capital Reserve Fund shall be funded as follows (each, a "Capital Reserve Contribution"):
(a) For the first Year of Operation, the Capital Reserve Contribution wil l be One Thousand Dollars ($100,000), to be funded in full within three (3) calendar days following the Effective Date.
(b) For the second and all subsequent Year s of Operation, the Capital Reserve Contribution will be One Hundred Thousand Dollars ($100,000) , one -twelfth (l/12th) of which shall be funded on the first day of each month during each such Year of Operation.
11.2 Capital Expense.
In the event that Manager, with the consent of Owner, makes a Capital Expenditure for items not paid from the Capital Reserve Fund, for the Facility which, under GAAP, may not be expensed in a single year but must be amortized over a period of years, then to the extent th ere remains an unamortized balance for such Capital Expenditure on expiration of the Te rm, Owner shall either (at its election, made not less than one hundred eighty (180) days prior to the expiration of the Term) (a) extend the Term by the number of years determined by dividing the unamortized balance remaining as of the last day of the Term by $100,000 (prorated to the nearest month end), or (b) on the Accounting Date following expiration of the Term, pay the unamortized balance to Manager.
11.3 Use of Capital Reserve Fund.
All amounts held in the Capital Reserve Fund on the date of termination or expiration of this Agreement shall remain the property of the Owner, to be used for such purposes as Owner determines, subject, however, to Owner's obligation to reimburse Manager as specifically provided in Sections 11.1 and
11.2. 10
12. Sportstown Site.
12.1 Restrictions.
The Sportstown Site is contiguous to the facility known as "Angel Stadium of Anaheim" and certain parking facilities which are subject to that certain "Amended and Restated Lease Agreement", dated as of May 15, 1996 , by and between the Owner and the Anaheim Angels L.P., a California limited partnership (formerly known as California Angels L.P., referred to as the "Stadium Tenant'' as clarified by that certain Letter agreement dated as of August 1, 1998 , between the landlord and tenant thereunder (the "Stadium Lease"). Environmental Impact Report No. 320 (the "E IR") has been certified, and Area Development Plan No. 120 has been approved by the City Council of the City of Anaheim for the Sportstown Site, each describing uses which may include a stadium for professional football, office buildings, hotel and exhibition facilities and retail dining and entertainment facilities. The Sportstown Site is subject to the provisions of the Redevelopment Plan for the Anaheim Stadium Disaster Recovery Redevelopment Project (hereinafter defined as the "Redevelopment Plan"), which plan was approved and adopted in August of 1994 by the Agency. Copies of the Stadium Lease Agreement, the EIR, the ADP, the Redevelopment Plan and other documents affecting the Sportstown Site are available as public records on file with the City Clerk at 200 South Anaheim Boulevard, Anaheim, California. Manager acknowledges that the Sportstown Site is subject to the Restrictions and agrees to cause the Facility and related parking arrangements to be operated in compliance with the Restrictions.
12.2 Compliance. Manager will take no action and agrees to rake no action which would cause Manager or Owner to fail to comply with the Restrictions. Manager acknowledges that it has read and understands the limitations and conditions imposed by the Stadium Lease and the Restrictions, and that certain aspects of development and operations, including shared parking arrangements and operations, signage and placement of food and beverage facilities may be subject to controls imposed by the terms of the Stadium Lease and the Restrictions. The covenants of the Manager set forth in this Section 12 shall run with the land and be binding on all successors and assigns of Manager for the benefit of Owner.
12.3 Intentionally Omitted.
12.4 Sportstown Site Parking.
Notwithstanding Clauses (i) and (m) of Section 3 above, in the event that, pursuant to the Restrictions, the parking facilities at the Sportstown Site including the Parking Area, are operated as a collective parking facility by the Owner, the Spor tstown Owners Association, a California non -profit mutual benefit corporation, or otherwise, then Manager shall not have the right to determine pricing for parking at the Parking Area. In that event, the Owner covenants it will use commercially reasonable efforts to cause the applicable Restrictions to be amended to provide for payment to Manager (or retention by Manager, as applicable) of net parking proceeds received from patrons of the Facility parking within the Sportstown Site, and parking arrangements for the Parking Area shall be as otherwise provided in the Parking License Agreement and the Restrictions. During any period in which Manager does not have the right to operate and manage the Parking Area and does not have the right to include in Revenues the parking fees paid by patrons of the Facility, the Manager's obligations to pay the "Annual License Fee" under the Parking License Agreement shall be waived by Owner.
13. Non-Competition By Owner.
Owner agrees that during the term of this Agreement, it will not cause to be constructed on property owned by it a theater facility which competes with the Facility. Manager acknowledges that the City of Anaheim, in its Master Plan for the Anaheim Convention Center, has planned for a theater to be
11 used in conjunction with activities at the Anaheim Convention Center and agrees that the theater component as described in such Master Plan (as the same may be revised, from time to time) does not constitute a breach of this Agreement, but that in the event such a theater is constructed at the Anaheim Convention Center and commences operation, Manager has the right to terminate this Agreement on ninety (90) days' prior notice. Owner states that it has no present plans to construct such theater prior to the year 2 027.
Manager agrees that the existing "Arena" operated at the Convention Center does not compete with the Facility as currently operated. Manager recognizes that privately owned theaters requiring discretionary approvals or entitlements from the Owner in i ts governmental regulatory capacity may be approved and constructed from time to time within the City of Anaheim. Neither the approval of such entitlements by the Owner nor the construction and operation of any such theater by any private party shall constitute a breach of this Agreement, or constitute cause for termination of this Agreement by Manager.
14. Insurance to be Maintained by Manager.
14.1 Without limiting OWNER’s right to indemnification, it is agreed that MANAGER shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
.01 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. .02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractor’s Liability (if ap plicable), in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an on an occurrence form. Any deductible or self - insured retention in excess of $10,000 must be disclosed to OWNER, in writing, at the inception of th is Agreement and is subject to the approval of the City’s Risk Manager. .03 Automobile Liability Coverage including -as applicable -owned, non - owned, and hired autos, in an amount not less than $2,000,000, combined single limit, as required by California law.
.04 Professional Liability Insurance, inclusive of Cyber liability where required, in an amount not less than $2,000,000 per claim, and CONTRACTOR shall maintain such coverage for at least one (1) year from termination of this Agreement. Any deductible or self -insured retention in excess of $10,000 must be disclosed to OWNER, in writing, at the inception of this Agreement and is subject to the approval of the City’s Risk Manager.
14.2 Each insurance policy required by this Agreement shall contain the f ollowing clause or shall otherwise provide for the following conditions: “This insurance shall not be voluntarily cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Owner, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium which shall provide for not less than ten (10) days notice.”
14.3 Each insurance policy required by this Agreement, excepting policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
.01 “It is agreed that any insurance maintained by MANAGER, pursuant to this Agreement, shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim.”
.02 “The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM-designated volunteers are added as additional insureds as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
14.4 Prior to commencing any work under this Agreement, MANAGER shall de liver to OWNER insurance certificates confirming the existence of the insurance required under this Agreement,
12 and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, MANAGER shall prov ide OWNER: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to OWNER evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best’s rating of A VII or higher; or ( iii) otherwise acceptable to OWNER, with prior written permission from OWNER. In the event that a claim or other legal action is filed against OWNER, and if OWNER, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then OWNER has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that MANAGER shall fully defend, hold harmless, and indemnify OWNER against any such claim or other legal action.
14.5 In addition to other remedies OWNER may have if MANAGER fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, OWNER may, at its sole option:
.01 Order MANAGER to stop work under this Agreement and/or withhold any payment(s) which become due to MANAGER hereunder until MANAGER demonstrates compliance with the requirements hereof; or
.02 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies OWNER may have and is not the exclusive remedy for MANAGER’s failure to maintain insurance or secure appropriate endorsements.
14.6 Nothing herein contained shall be construed as limiting in any way the extent to which MANAGER may be held responsible for payments of damages to persons or property resulting from MANAGER’s (or MANAGER’s contractors/subcontractor, if any) performance of the work covered under this Agreement, provided, however, that in no event shall MANAGER’s liability to OWNER under this provision exceed the greater of (i) the total amount of the fees paid to MANAGER for such work or services, or (ii) the amount of valid and collecti ble insurance carried by, maintained by, or otherwise available to MANAGER (or MANAGERS’s professional staff, contractors, or sub-contractors), which is applicable to any claim, loss, costs, defense, or liability arising out of this agreement.
14.7 In the event MANAGER hires other persons or firms to perform some of the work related to this Agreement, MANAGER shall ensure, and certify to OWNER in writing that: (i) the acts or omissions of such persons or firms are covered under the above-referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of MANAGER under this Agreement (except for firms which are not performing professional services-such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, MANAGER shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to OWNER.
14.8 OWNER’s Risk Manager is hereby authorized to reduce the requirements set forth herein in the event she determines that such reduction is in OWNER’s best interest.
15. Indemnification.
15.1 As respects acts, errors or omissions in the performance of professional servic es, MANAGER agrees to indemnify and hold harmless OWNER, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, arising out of MANAGER’s (or MANAGER’s contractors’ or subcontractors’, if any) negligent acts, errors or omissions in the performance of professional services under this Agreement.
15.2 As respects all acts, errors or omissions which do not arise directly out of the
13 performance of professional services, including but not limited to those acts, errors or omissions typically covered by ISO -based general and automobile liability insurance coverage, MANAGER agrees to indemnify, defend (at OWNER's option), and hold harmless OWNER, its officials, officers, employe es, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with MANAGER’s (or MANAGER's contra ctors’ or subcontractors’, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of OWNER.
15.3 The obligations set forth in this indemnification provisi on (i) shall be in effect without regard to whether or not OWNER, MANAGER, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
16.Default and Remedies.
16.1Defaults of Manager.
Each of the following shall constitute an event of default on the part of Manager (each, a "Potential Default," and following the expiration of the applicable cure period, an "Event of Default").
(a) Failure to pay any amounts required to by paid by Manager to Owner under this Agreement with in five (5) calendar days following notice from Owner.
(b) Except as provided in clause (a) above, the failure to cure, after thirty (30) days' notice to Manager, any other breach or default by Manager under this Agreement, provided that in the event the cure cannot be completed within such thirty (30) day period, the cure period shall be extended so long as is reasonably required to complete such cure, to a maximu m of an additional one hundred and eighty (180) days, so long as the cure has been commenced within such thirty (30) day period and is diligently carried out to completion. Notwithstanding the preceding, Manager shall not be in default under this Agreement in the event of a bona fide dispute with a vendor or other third party as to amounts payable by Manager so long as Manager continues to use commercially reasonable efforts to diligently resolve the dispute and has paid all undisputed amounts, unless clause (d) below otherwise applies.
(c) Manager's becoming insolvent or bankrupt or becoming unable or ceasing to pay its debts as they mature, or making an arrangement with or for the benefit of its creditors, or consenting to or acquiescing in the appointment of a receiver, trustee or liquidator for its obligations under this Agreement or for any substantial part of its property, or any bankruptcy, reorganization or insolvency or similar arrangement or proceeding instituted by or against the Manager under the Jaws of any jurisdiction which has not been stayed or dismissed within ninety (90) days.
(d) Manager's causing or allowing a lien or encumbrance not existing as of the Effective Date or relating to operations at the Facility prior to the Effective Date to be imposed against all or any portion of the Facility unless the same is removed or expunged within ten (10) days of Manager's becoming aware of the existence of such lien or encumbrance.
16.2 Remedies of Owner.
On the occurrence of an Event of Defaul t as described above, Owner may terminate this Agreement effective on the date specified in a written Notice of Termination delivered by Owner to Manager in accordance with Section 19.2 below and exercise all other remedies available to it at law or in
14 equity on account of such default.
16.3 Owner Default; Remedies of Manager.
In the event Owner fails to pay any amount due under this Agreement from Owner to Manager within five (S) calendar days following notice from Manager fails to cure any other breach or default by Owner under this Agreement after thirty (30) days notice to Owner (or, if such cure cannot be completed within such thirty (30) day period, within such period of time as is reasonably required to complete such cure, to a maximum of an additional one hundred eighty days, so long as the cure has been commenced within such thirty (30) days period and diligently carried out to completion, or Owner becoming insolvent or unable to pay its obligations when due), Manager may terminate this Agreement by written notice given to Owner and exercise all other remedies available to it at law or in equity on account of such default.
17. Representations.
17.1 Representations of Manager.
Manager makes the following representations:
(a) Duly Organized. Manager is a limited liability company duly organized and existing in good standing under the Jaws of the State of California, has made all required filings to effect and maintain such status, and holds a valid business license from the City of Anaheim.
(b) Power and Authority . Manager has full power and authority to execute this Agreement and to carry out its obligations under this Agreement, without the consent of any other Person, and the persons or parties signing this Agreement on behalf of Manager have the power and authority to enter into this Agreement and to comply with the obligations of Manager under this Agreement.
(c) No Conflict. The execution and delivery of this Agreement and the performance by Manager of its obligations under this Agreem ent will not conflict with, result in breach of or cause a default or loss of any benefit under any provision of any of Manager's governing documents or any material agreement, instrument or obligation by which it is bound.
(d) Binding Effect. This Agreement constitutes the legal, valid and binding obligation of Manager enforceable in accordance with its terms, subject to laws applicable generally to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting or limiting the rights of contracting parties generally.
17.2 Representations of Owner. Owner makes the following representations:
(a) No Conflict. The execution and delivery of this Agreement and the performance by Owner of its obligations un der this Agreement will not conflict with, result in a breach of or cause a default or loss of any benefit under any provision of any of Owner's governing documents or any material agreement, instrument or obligation by which it is bound.
(b) Power and Au thority. Prior to the Effective Date, this Agreement has been duly authorized by binding minute action of the City Council of Anaheim. Owner has full power and authority to execute this Agreement and to carry out its obligations under this Agreement, without the consent of any other Person, and the persons or parties signing this Agreement on behalf of Owner have the power and authority to enter into this Agreement and to comply with the obligations of Owner under this Agreement
15 (c) Binding Effect. This Agreement constitutes the legal, valid and binding obligation of Owner enforceable in accordance with its terms, subject to laws applicable generally to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles aff ecting or limiting the rights of contracting parties generally.
(d) Contracts. To Owner's knowledge, without investigation of any kind, Owner has disclosed to Manager all contracts presently in effect at the Facility.
(e) Capacity. The City of Anaheim Fire Department has determined that the maximum (standing) number of persons at the Facility (theater area) is 1,743, including all staff, employees, and entertainment personnel, as well as guests.
(f) Parking. The Parking License Agreement is in full force and effect.
(g) Condition of Facility. Owner did not construct, has not operated the Facility, and makes no representation as to the condition of the Facility or any property at the Facility, including the Personal Property, or the compliance of the Facility with applicable law.
18. Hazardous Substances.
18.1 Covenant Regarding Hazardous Substances Handling.
Manager hereby agrees that it and its agents, employees, contractors, affiliates, licensees or invitees shall not generate, manufacture, store, dispose of or otherwise use or hold on, under or about the Facility or transport to , from, or across the Sport stown Site any Hazardous Substances, without the prior consent of Owner other than office supplies and cleaning products, all as used in the ordinary course of business and all of which shall be used in strict compliance with all applicable Hazardous Laws. In the event Manager receives notice from an y governmental agency of any proposed action against Manager under or violation of any Hazardous Substance Law pertaining to the Facility or any improvements thereon, Manager shall promptly notify Owner of the same.
18.2 Hazardous Substances Handling.
Upon the expiration of the Term or earlier termination of this Agreement, Manager shall, at its sole cost and expense, cause all Hazardous Substances to be removed from the Facility and transported for use, storage, or disposal in compliance with all Hazardous Substance Laws.
19. Miscellaneous Provisions.
19.1 Relationship.
Owner is the sole and exclusive owner of the Facility. Nothing in this Agreement shall be construed to create a partnership or joint venture. Manager acknowledges that Manager has no possessory or prop erty interest in the Facility, nor any interest in its business or assets, except for the interest of Manager in profits strictly as described in this Agreement.
19.2 Notices.
Any notices required or desirable under this Agreement sha ll be made in writing and delivered personally or by certified mail, postage prepaid, return receipt requested, or be recognized
16 overnight courier, such as Federal Express or UPS, address to the applicable party at the address stated in the introductory paragraph to this Agreement, and shall be deemed to be delivered on the third business day after positing in a U.S. Post Office or when actually delivered in person or by overnight courier. Any and all notices or other communications required or permitted by this Agreement, or by law, to be delivered to, served on, or given to either party to this Agreement. by the other party to this Agreement, or to Escrow Holder, shall be in writing and shall be deemed properly delivered, given or served when personally delivered to such party, or in lieu of personal delivery, when mailed by United States mail, first class or express, certified or registered, postage prepaid (or other overnight delivery service, charges prepaid), return receipt requested, or sent by courier , or by facsimile transmission provided that the original, hard copy is delivered on the next day, addressed as follows:
Owner:
City of Anaheim
Attn: Executive Director Convention,
Sports & Entertainment
800 W. Katella Ave.
Anaheim, CA 92802
With a Copy to:
Anaheim City Clerk
200 S. Anaheim, 2nd Floor
Anaheim, CA 92805
Manager: OC Sports & Entertainment, LLC
Attn: General Manager
2695 E. Katella Avenue
Anaheim, CA 92806
With a Copy to:
OC Sports & Entertainment, LLC
Attn: Legal Department
2695 E. Katella Avenue
Anaheim, CA 92806
19.3 Taxes.
Manager recognizes and understands that this Agreement may create a possessory interest subject to property taxation, and in such a case, Manager shall be entitled to treat the actual cost of any property or possessory interest taxes as an Operatin g Expense. On Manager's request, Owner sha ll cooperate with Manager in challenging an assessment which the parties agree is properly subject to a protest, with all costs incurred constituting an Operating Expense.
Manager shall pay any and all taxes, including but not limited to, real property, personal property, sales tax and possessory interest or use tax, assessed or levied on Manager’s or Owner's interest in the Agreement, Manager’s real or personal property, and/or improvements constructed in Owner’s property by Manager.
19.4 No Third Party Beneficiaries.
This Agreement is solely for the benefit of the parties and is not intended to benefit any person or entity that is not a party hereto.
17 19.5 Successors and Assigns.
Manager shall have no right or power co assign any rights, obligations or interest in this Agreement to any other person or entity without Owner's prior written consent, excluding a transfer to James L. Nederlander or the heirs of a member of the Manager. Owner shall have the right to withhold consent in Owner's sole discretion, for any reason or no reason whatsoever. Any one or more transfers of ownership of any ownership interest of Manager shall be deemed to be an assignment of the Agreement requiring Owner's consent. This Agreement may be transferred by Owner to any subsequent owner of the Facility. Subject to the foregoing, this Agreement shall be binding on and benefit the parties and their respective successors and assigns.
19.6 Intentionally Blank.
19.7 Force Majeure.
If the performance by either Owner or Manager of any act required under this Agreement is prevented, materially impaired, or delayed by reason of terrorism, acts of public enemy, war, strikes , lockouts, labor disputes, governmental delays, acts of God, f ires, floods, earthquakes, epidemics, freight embargo, or any other cause, beyond their reasonable control, either Owner or Manager shall be excused from such performance for so long as such condition continues to exist.
19.8 Interpretation.
This Agreement shall be governed by Ca lifornia law. The provisions of this Agreement shall be interpreted and construed according to their fair meanings and not strictly for or against either party.
Headings in this Agreement are inserted only for convenient referenc e and are not part of this Agreement and do not limit, define, interpret, cons true or otherwise affect the meaning of the provisions of this Agreement. References in this Agreement to "months" refer to calendar months.
19.9 Entire Agreement.
This is the parties' entire Agreement on its subject, and merges and supercedes all prior negotiations, discussions and agreements. This Agreement cannot be amended or modified except by an instrument in writing signed by both parties. No waiver of the breach of any term of this Agreement shall waive any other breach.
19.10. Reserved Rights.
Owner’s approval shall be required prior to Manager entering into or amending a Food and Beverage Concessions Contract, provided that Owner's approval shall not be required for the entering into or amending of a Food and Beverage Concessions Contract so long as (i) Manager has provided Owner ten (10) business days' advance notice of the proposed form of such contract and, on Owner's request made within three (3) business days o f Owner's receipt of such contract, has provided to Owner reasonable evidence that (a) such contract has been awarded through a competitive bid process and (b) is on terms consistent with those extended to other comparable entertainment facilities in the S tate of California, and (ii) the term of such new or amended Food and Beverage Concessions Contract does not extend beyond the Term wider this Agreement as in effect from time to time. All rights of Owner pursuant to this Section may be exercised by the Ci ty Manager of the City of Anaheim or the City Manager's designee. Initially, the Executive Director, Convention, Sports & Entertainment, is named as City Manager's designee for purposes of exercising the reserved rights of Owner under this Agreement.
18 19.11 Discrimination
Manager agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that Manager offer accommodations or services to the public, such accommodations or services shall be offered by Manager to the public on fair and reasonable terms.
19.12 Surrender of Premises
The Manager shall peaceably surrender and deliver to the Owner possession of the Facility and improvements thereupon on the date of termination of the Agreement. Such expenses shall not be part of the Operating Expenses and shall be Manager’s sole responsibility.
Upon termination of the Agreement, the Manager shall remove all Manager’s employees’ personal property in such a manner as to cause no damage to the F acility, and in the event of any such damage, the Manager agrees, at its own cost and expense, to repair and/or restore premises to the original condition or to a condition satisfactory to the Owner.
If the Manager fails or neglects to remove all or any portion of its merchandise, equipment, trade fixtures and/ or personal property within fifteen (15) calendar days after the termination of the Agreement, Owner, at its sole option and without prior notice to the Manager, may either remove and/or dispose of the same and charge the cost of such removal and/or dispos al to the Manager, which costs the Manager hereby agrees to pay, or Owner may consider the same to be abandoned and take title thereto in the name of the Owner.
In general, upon termination of the Agreement designating the Manger’s Exclusive status, the Facility shall be returned in the same or better condition than when the agreement was initially executed, normal wear and tear excepted.
Also upon termination, the Manager and Owner will mutually conduct a walkthrough with the then- current list of furniture, fixtures, equipment, and small wares, in order to verify the presence of such items.
19.13 Alteration to Facility.
No excavation, additions or alterations shall be made by the Manager to the Facility and its premises and/or appurtenances without the prior written consent of the Owner. The use of the Facility and its appurtenances by the Manager and its employees or agents in any manner other than that authorized herein must be approved by the Owner.
19.14 Permits and Licenses
Manager, at its sole cost and expense, shall be responsible for securing any and all licenses and permits that are required by any statute, ordinance, rule or regulation of any regulatory body having jurisdiction in any manner connected with providing operations and maintenance of the Facility.
19.15 Conflict of Interest
Manager or its employees may be subject to the provisions of the California Political
19 Reform Act of 1974 (the "Act"), which: (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement; and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.
If subject to the Act, Manager shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by Owner.
Manager shall indemnify and hold harmless Owner for any and all claims for damages resulting from Manager’s violation of this Section.
19.16 Confidentiality
All documents, including drafts, preliminary drawings or plans, notes, ideas and communications that result from the Services provided under this Agreement, shall be kept confidential by Manager unless Owner authorizes, in writing, the release of said information.
19.17 Use and Ownership of Documents and Data.
Owner shall furnish to Manager such documents and materials as may be relevant and pertinent to the provision of services hereunder as Owner may possess or acquire.
All documents and materials furnished by Owner to Manager shall remain the property of Owner and shall be returned to Owner upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by Manager, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of Owner, and Owner shall have the sole right to use such materials in its discretion without further compensation to Manager or any other party. Manager shall, at Manager's sole cost and expense, provide such documents and material to Owner upon prior written request.
Documents and material prepared by Manager pursuant to this Agreement are not intended or represented to be suitable for reuse by Owner or ot hers on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Manager will be at Owner's sole risk and without liability to Manager. Further, any and all liabil ity arising out of changes made to Manager's deliverables under this Agreement by Owner or persons other than Manager, is waived against Manager and Owner assumes full responsibility for such changes unless Owner has given Manager prior notice and has received from Manager written consent for such changes.
{signatures on following page}
20 OWNER
City of Anaheim,
DATE: ______________________ a municipal corporation
By:_________________________________
DATE: ______________________ ATTEST:
By:________________________________
Theresa Bass, City Clerk
DATE: ______________________
MANAGER
OC Sports & Entertainment, LLC, a California
limited liability company
By:________________________________
Name: _____________________________
Title: ______________________________
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By: __________________________________
Bryn M. Morley
Deputy City Attorney
153014.5
21 EXHIBIT "A"
Definitions
"Accounting Date'' is defined in Section 7.1.
"ADP" means Area Development Plan No. 120 as approved by the City Council of Owner, as amended from time to time, and any replacement plan adopted in accordance with the applicable law.
"Affiliate" shall mean any Person, directly or indirectly, though one or more intermediaries, controlling, controlled by or under common control with the Manager. The term "control", as used in the immediately-preceding sentence, shall mean with respect to a corporation or limited liability company the right to exercise , directly or indirectly, more than fifty -percent (50%) of the voting right s attributable to the controlled corporation or limited liability company and, with respect to any individual, partnership, trust, other entity or association, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled entity.
"Capital Expenditure" is defined in Section 11.1.
"Capital Reserve Fund" and "Capital Reserve Contribution" are defined in Section 11.
"City Manager" means the City M anager of the City of Anaheim, or such person's designee. The City Manager or his/her designee shall represent the Owner in all matters pertaining to this Agreement. Whenever a reference is made herein to an action or approval to be undertaken by the Owner, the City Manager is authorized to act unless this Agreement specifically provides otherwise or the context should otherwise require. The Manager acknowledges and agrees that in reviewing and approving matters under this Agreement, the Owner is acting as a property landlord under this Agreement and that the Owner's actions in this regard are separate and distinct from the Owner's conduct of its typical governmental functions and exercise of its police powers in its governmental capacity.
Food and Beverage Operator” means the company with whom Owner, from time to time, contracts for the provision of food and beverage services at the Facility.
“Hazardous Substance” means an unlawful quantity of any hazardous substance, hazardous waste, hazardous constituent, toxic substance, pollutant, contaminant, or chemical known to the State of California to cause cancer or reproductive toxicity, as such or similar terms are defined by or otherwise subject to regulation by any local governmental authority, the State of California or the United States Government. The term “Hazardous Substance” includes, but is not limited to, an unlawful quantity of any material or substance which is (i) defined as a “hazardous waste” under Section 251 15 of the California Health & Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “hazardous substance” under Section 25316 of the California Health & Safety Code, Division 20, Chapter
6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a “hazardous waste” under Section 25501 of the California Health & Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a “hazardous substance” under Section 25281 of the California Health & Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum product, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) methyl- tert butyl ether, (ix) designated as a “haza rdous substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317), (x) defined as a “hazardous waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C.
Section 6903), or (xi) defined as a “hazardous substance” pursuant to Section 10.1 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9801, et seq. (42 U.S.C.
22 Section 9801), as each of the foregoing may be amended, supplemented or replaced from time to time.
"Hazardous Substance Laws" means any governmental law, ordinance or regulation relating to industrial hygiene, environmental protection, or the use, analysis, generation, manufacture, storage or transportation of Hazardous Substances.
"Manager" is defined in the opening paragraph of this Agreement "Naming Rights" is defined in Section 9.2.
"Operating Account'' is defined in Section 5.1 (b).
"Operating Expenses" means collectively, on an accrual basis, all expenses of operating, maintaining, repairing and replacing portions of the Facility and of maintaining and operating the Parking Area (except as described in Section 12.4), including utilities, costs of insurance, amounts payable to the City of Anaheim under the Parking License Agreement, wages of employees of the Facility and related payroll expense and all costs of entering into service and other contracts as contemplated by this Agreement; costs of materials and supplies; talent expense; advertising and promotional cost and other direct expenses; the Management Fee; amounts actually paid to or held back by the Food and Beverage Operator; all charges and taxes, which may now at any future time be imposed by any governmental body having jurisdiction on the uses and operation of the Facility provided in this Agreement; legal and other professional fees incurred in the ordinary course of operation of the Facility not specifically excluded below, and any Capital Reserve Contribution made pursuant to Section 11, but specifically excluding legal fees of either party in connection with negotiation, documentation, interpretation or enforcement of this Agreement, indirect costs or overhead of Manager or Owner (in particular, any salary allocation of manag ement of Manager or an Affiliate of Manager, and legal, accounting, and human resources expenses of Manager or an Affiliate of Manager shall not be allocated to the Facility), nor may the cost of insurance or advertising which are attributable to this Facility and any other facility owned, operated or managed by Manager or an Affiliate of Manager be charged as an Operating Expense except to the extent such allocated share does not exceed the lesser of the pro rata share of such costs attributable to the Facility on the basis of its actual uses of such services (if determinable) or the cost of such services if purchased, at a market rate, for the Facility alone.
"Operating Losses" means the excess of Operating Expenses over Revenues for any Year of Operation.
"Operating Profits" means the excess of Revenues over Operating Expenses for any Year of Operation.
"Owner" is defined in the opening paragraph of this Agreement.
"Owner Indemnified Parties" means Owner and its elected and appointed officials, officers, employees, contractors, agents, heirs, successors, and assigns.
"Parking Area" means those spaces identified in the Parking License Agreement.
"Parking License Agreement'' means the Parking License Agreement dated September J, 1997 recorded December 30, 1997, including any subsequent addendums thereto.
Shows" as used in Section 2.3(b) thereof shall mean the uses contemplated by this Agreement, and "Identified Use Perio d' as used in Section 2.3(b) thereof shall mean the periods during which, on a regular basis during the Term, the Facility is used for such purposes.
23 "Person" means an individual, partnership, limited liability company, corporation, trust, estate, association or any other entity.
"Personal Property" is the certain perso nal property listed on Schedule I attached to this Agreement.
"Potential Default” is defined in Section 16.1.
"Redevelopment Plan" is defined in Section 12.1
"Restrictions" means, collectively, (a) the ADP, (b) the Redevelopment Plan, (c) the EIR, (d) the covenants , conditions and restrictions set forth in the Grant Deed from the Owner to Ogden Entertainment Services, Inc. recorded December 30, 1997 in the Official Records of Orange County, California as Document No. 19970672347,(e) the "Declaration of Restrictions (Anaheim Stadium Property)" dated as of September 17, 1999 recorded in the Official Records of Orange County, California on March 22, 2000, as Document No. 20000146812 and re-recorded to correct the legal description attached thereto as Exhibit "B" on March 30, 2000 in the Official Records or Orange County, California as Document No. 20000164061, relating to the Stadium Lease, (f) the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements for Sportstown Anaheim dated recorded April l 0, 2000 in the Official Records of Orange County, California, as Document No. 20000183505, and (g) such additional covenants, conditions, restrictions, reciprocal easement agreements, and other agreements to which all or any portion of the Facility, as applicable, is bound, whether presently existing or subsequently recorded.
"Revenue" means collectively, on an accrual basis, any and all payments, foes and deposits of every nature received for use of the Facility or services at the Facility, in cluding revenues derived under the Food and Beverage Contract; Advance Deposits when taken into income as described in Section 5.1; parking fees; vendor refunds; membership fees; sponsorship and licensing fees received pursuant to Sections 9.1 and 9.3; pro ceeds from the sale of programs, novelties; proceeds of insurance policies, other than amounts received following casualty or destruction, if any); and all funds received from any other source in connection with events held at the Facility including rebates or rights fees paid by third parties to the extent attributable to operations at the Facility directly or indirectly and allocated in a manner which equitably compensates the Facility for its proportionate contribution to such rebates or rights fees.
"Stadium Lease" is defined in Section 12.1
"Term" is defined in Section 2.1.
"Year of Operation" means the calendar year, except that the first Year of Operation begins on the Effective Date and continues to 2027 and the last Year of Operation terminates on the last day of the Term.
24 EXHIBIT B
[APPEARS BEHIND THIS PAGE]
REQUEST FOR PROPOSALS
FOR THE
MANAGEMENT AND OPERATIONS OF
THE
CITY NATIONAL GROVE
OF ANAHEIM
MAY 10, 2024
Exhibit B
Request for Proposal – Management and Operations of the City National Grove of Anaheim- May 10, 2024 Page | 2
Table of Contents
1.0 INVITATION ............................................................................................................................................................. 3
2.0 OVERVIEW / HISTORY ........................................................................................................................................... 4
3.0 EXPECTATIONS / CONTRACT TERM .................................................................................................................. 8
4.0 PROPOSAL SUBMITTAL ........................................................................................................................................ 8
5.0 SCOPE OF SERVICES ............................................................................................................................................ 14
6.0 OTHER REQUIREMENTS, TERMS AND CONDITIONS ................................................................................... 16 Appendix A PROPOSAL FORM ......................................................................................................................................... 19 Appendix B GENERAL QUESTIONNAIRE ...................................................................................................................... 20 Appendix C EXAMPLE AGREEMENT .............................................................................................................................. 23 Appendix D PARKING LICENSE AGREEMENT AND ADDENDA ............................................................................... 24 Appendix E SPORTSTOWN ASSOCIATION SITE MAP ................................................................................................. 80 Appendix F THE GROVE PARKING LOT SITE MAP ...................................................................................................... 81 Appendix G UNAUDITED FURNITURE, FIXTURES, AND EQUIPMENT INCLUDING SMALLWARES ................ 82
Request for Proposal – Management and Operations of the City National Grove of Anaheim- May 10, 2024 Page | 3
REQUEST FOR PROPOSALS FOR THE MANAGEMENT AND OPERATIONS
OF THE CITY NATIONAL GROVE OF ANAHEIM
1.0 INVITATION
The City of Anaheim, CA (City) has chosen to consider continuing with contract management for the City National Grove of Anaheim (“The Grove”) and is seeking proposals from qualified firms. Contract management would oversee all aspects of The Grove including operations/engineering, food service (either self-operation or contracted), booking/programming, merchandising, ticketing, technology, security, maintenance, and sales & marketing, promotions & advertising, and operation/management of 550 adjacent, vehicular surface parking surface spaces, see attached Parking License Agreement and addenda. The start date for the contract management firm is anticipated to be no later than January 1, 2025.
Please submit your RFP response digitally via the City’s Planet Bids Vendor Portal, http://www.anaheim.net/vendorportal
RFP#
575_MANAGEMENT_AND_OPERATIONS_OF_THE_CITY_NATIONAL_GROVE_OF_ANAHEIM_5_10_202 4, by Wednesday, July 10, 2024, at 4:00 PM Pacific Daylight Time in the following format:
• Appendix A: Completed Proposal Form signed by an officer of the company that has contract signatory powers, i.e., President, Vice-President, or an individual authorized by corporate resolution or company by-laws. • Appendix B: General Questionnaire Experience and Qualifications with all sections and questions completed including, but not limited to:
o General Business Information
o Background, Qualifications and Experience
o Operating Plan
o Compensation Proposal
o Financial Strength
o Other Information
• Letter-sized, 8-½ x 11in portrait format for text pages • Any spreadsheets, PowerPoints, or diagrams can be letter-sized, landscape format if necessary • Must contain a cover page with the name of the firm, date of submission and the words:
“575_MANAGEMENT_AND_OPERATIONS_OF_THE_CITY_NATIONAL_GROVE_OF_ANAHE IM_5_10_2024”. City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal will not accept submittals after the deadline.
Nothing contained in this RFP shall create any contractual relationship between the Proposer and the City or the Convention, Sports, and Entertainment (CS&E) Department. This RFP does not commit the City/CS&E to award a contract.
The City/CS&E accepts no financial responsibility for any costs incurred by any Proposer regarding this RFP and the preparation and/or submission of a proposal, or for procuring or contracting for services and items used in response to this RFP. All costs incurred directly or indirectly related to responding to this RFP (including all costs incurred in providing supplementary documentation) will be borne solely by the Proposer.
All documents submitted in response to this RFP shall become the property of the City/CS&E.
The City/CS&E reserves the right to accept or reject any or all proposals received as a result of this request, to negotiate with any qualified sources, to cancel, in part or in whole, this RFP , or to proceed with the work in any manner as may be considered in the best interest of the City.
The City/CS&E also reserves the right to:
1) Waive any informalities or irregularities in any proposal or submission procedure.
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2) Accept or reject any or all proposal(s), or any part thereof.
3) Reissue or cancel this RFP, with or without modification.
4) Investigate thoroughly the financial status, experience and record of each Proposer.
Any Proposer may withdraw their proposal from the City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal at any time prior to the submittal deadline. Proposers may resubmit a complete replacement of any withdrawn proposal the City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal at any time prior to the submittal deadline.
The City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal will not accept submittals after the deadline.
Discussions may be conducted with a responsible Proposer capable of being selected for the award for the purpose of clarification.
The City reserves the right to, at its sole and unqualified discretion, modify the requirements of this RFP, including extending the overall timeline.
A mandatory pre-submittal Site Visit/Tour of The Grove will be conducted on Monday, June 3, 2024, at 10:00 A.M., in front of The Grove Box Office located at:
City National Grove of Anaheim
2200 E. Katella Avenue
Anaheim, CA 92806
No late arrivals to the Pre -Submittal Site Visit/Tour. All Proposers must have a representative present at the pre- submittal Site Visit/Tour by 10:00 AM Pacific Daylight Time in order for their bid to be considered as responsive.
Proposers are each limited to a maximum of six attendees at the pre-proposal meeting.
Communication between a Proposer and any elected City of Anaheim official regarding the selection of a proposal, a Proposer or the award of a contract for the work for which this RFP has been issued is prohibited from the time the Request for Proposals (RFP) is advertised until the award of a contract to the Proposer selected by the City.
2.0 OVERVIEW / HISTORY
2.1 The Grove
The Grove was constructed on approximately 1.2 acres of land located at 2200 East Katella Avenue, Anaheim, California, 92806 and adjacent to Angel Stadium of Anaheim. The venue, approximately 40,000 square feet, was built and opened in November 1998 as Tinseltown, a 700-seat themed dinner theater type entertainment attraction. In September 1999, the venue was converted from the themed dinner theater to an upscale, midsize concert venue accommodating up to 1,600 guests, depending on the configuration. The Grove may be configured for banquet style, dinner style, theater style, cocktail style round, or open GA standing, depending on the event.
Additionally, The Grove is part of the Sportstown Homeowners Association (Association) The City of Anaheim owns the Association Site, as depicted in Appendix E. The Association manages the common areas of the Association Site including all areas of The Grove parking lot up to where the asphalt touches Request for Proposal – Management and Operations of the City National Grove of Anaheim- May 10, 2024 Page | 5
the exterior walls and/or the curbside of the building. The Association is not responsible for any portion of The Grove within the footprint of the building and/or the curbside.
The manager of the selected Proposer will be required to attend the biannual Association meeting which typically occurs the first Monday of March and the first Monday of November. The meetings are sometimes held in the City office located at Angel Stadium of Anaheim or they are held virtually.
2.2 Space Allocation
The Grove offers four separate but adjacent areas giving multiple options and flexibility. The venue can accommodate corporate events, holiday parties, receptions, and concerts ranging from 1 to 1600 guests. Main Room
The Gallery (entry and pre-function space)
Terra Rosa Room
The Palm Courtyard
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2.3 Current Operations
The debt-free Grove is owned by the City and operational responsibility falls under the City’s Convention, Sports & Entertainment Department (CS&E).
Currently the venue is managed by Nederlander-Grove, LLC. through two separate agreements: one for the overall management of the venue (called a “concessions agreement”) where the City and operator split the net operating income, and a second agreement that is akin to a lease where the operator pays a flat annual fee (considered an operating expense of The Grove) to the City for the rights to 550 parking spaces and then manages all operational revenues and expenses; all parking income (gross revenue less operating costs less flat annual fee) is considered an operating revenue of The Grove. The parking agreement document is identified as a “Parking License Agreement.” The original agreements for both documents were executed many years ago and have been extended through a series of amendments.
It is the direction of the City that as a result of this RFP, there will continue to be two separate agreements, one for venue management and one for parking.
The selected Proposer will be required to enter into a Parking License Agreement inclusive of all of the same terms and conditions that are contained in the current Parking License Agreement and addenda for use of the 550 parking spaces. A copy of the current Parking License Agreement and addenda is available in Appendix D. See Appendix F for the Parking Lot Site Map.
The current “concessions agreement” requires the City to bear a portion of an operating loss in any given year. The contract resulting from this RFP will remove any and all obligations of the City/CS&E to bear any portion of an operating loss of The Grove; the selected Proposer will be responsible for any and all operating losses.
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2.4 Minimum Qualifications
Firms responding to this RFP must be prepared to undertake, in the most efficient manner possible, all aspects of management, marketing, and operations of The Grove. Respondents to this RFP are expected to meet or exceed the minimum qualifications set forth in this RFP.
Qualifications will be reviewed and evaluated based on the criteria set forth in this RFP. Proposers (the entity, or the individual firms that comprise a joint venture) must meet or exceed the following criteria:
2.4.1 Must be legally capable of operating within the State of California and City of Anaheim.
2.4.2 Must have at least five (5) consecutive years of successful experience managing public assembly venues facilitating live music.
2.4.3 Whether outsourced or not, the proposed food and beverage operator must have at least five (5) consecutive years of successful experience in providing food and beverage services at a public assembly venue facilitating live music.
2.4.4 It is acceptable that proposers possess the requisite minimum qualifications themselves or they may rely on the qualifications of firms with whom they have merged or acquired, or have been acquired by.
2.5 Annual Activity
The figures below represent the actual calendar year bookings held for 2019-2024 (projected).
Type of Event
Actual
2019
Actual
2020
Actual
2021
Actual
2022
Actual
2023
Projected
2024
Concerts 51 52 38 51 57 58
Special Events 154 33 28 59 72 79
TOTAL EVENTS 205 85 66 110 129 137
TOTAL ATTENDANCE 146,368 33,956 55,567 92,885 107,831 89,935 Request for Proposal – Management and Operations of the City National Grove of Anaheim- May 10, 2024 Page | 8
3.0 EXPECTATIONS / CONTRACT TERM
3.1 Expectations for Service Provider
The provision of quality management services is critical. The City/CS&E is seeking to partner with an experienced venue operator that is highly qualified and will contribute to our success by booking a variety of events, including but not limited to, live entertainment, food and beverage functions, and general meetings while maximizing revenue and minimizing expenses.
Proposers are expected to conduct their own independent investigation of the requirements for management and operation. Proposers shall assume all risks arising from any reliance upon information that may have been provided by the City/CS&E related to potential management activity. Proposers hereby acknowledge and knowingly waive any claim for damages or loss, including consequential damages, arising from reliance upon any information that may have been provided by the City/CS&E.
3.2 Term Of Contract Agreement
Base Period
Three (3) Years (proposed - January 1, 2025, through December 31, 2027)
Extensions to Base Period
At the conclusion of the base third-year period, and upon mutual consent , the contract may be extended, for up to two (2) one-year option periods, the first from January 1, 2028, through December 31, 2028; the second from January 1, 2029, through December 31, 2029.
The Extensions to the Base Period or any subsequent optional renewal period will be by mutual consent of the Successful Proposer and the City/CS&E.
4.0 PROPOSAL SUBMITTAL
4.1 Objective
The purpose of this Request for Proposal is to seek a contract manager for The Grove that is highly qualified and has demonstrated experience at providing exceptional oversight of all aspects of a facility including operations/engineering, food service (either self -operation or contracted), booking/programming, merchandising, ticketing, technology, security, maintenance, and sales & marketing, promotions & advertising at like venues and submit the financial proposal which the City/CS&E deems most beneficial.
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4.2 Critical Dates
Request For Proposals Issued Friday, May 10, 2024
Mandatory Pre-Submittal Site Visit/Tour Monday, June 3, 2024 - 10:00 AM (PDT) Last Day to Submit Written Questions for Clarification Monday, June 10, 2024 - 4:00 PM (PDT) City to Issue Addendum (if needed) Friday, June 21, 2024 Request For Proposal Due and
Uploaded to Planet Bids and Bid Opening Wednesday, July 10, 2024 - 4:00 PM (PDT) Oral Presentations (Subject to Change) Week of July 29, 2024 Notice of Intent to Award of Bid Friday, August 9, 2024 Contract Negotiation Period August 9, 2024 – September 6, 2024 Final Contractual Agreement from Proposer Friday, September 13, 2024 * Proposer to Submit Evidence of Insurance Documents Friday, September 13, 2024 * City Council Review & Agreement Approval Tuesday, October 8, 2024 * Proposed Agreement Commencement Date Wednesday, January 1, 2025 Proposer Commences On-site Operation Wednesday, January 1, 2025
*Indicates that dates are tentative as they reflect optimal circumstances for the evaluation phase and preparation of the contractual agreement. The City reserves the right to adjust the timeline as necessary to meet the City Council meeting schedule.
The format and duration of oral presentation will be determined at a later date, and the City reserves the right to dispense with presentations and directly negotiate with a selected Proposer.
4.3 Expenses Incurred by Proposer
All expenses incurred by Proposer in responding to the RFP shall be the sole responsibility of the Proposer.
Should the successful Proposer pay or incur expenses for plans, preparation, materials, supplies and equipment prior to execution of the contract by the City, such expenses shall be considered as having been made at Proposer’s sole risk and expense and shall not obligate the City/CS&E in any way to reimburse such expenses.
4.4 Mandatory Pre-Submittal Site Visit and Tour
4.4.1 Mandatory Pre-Submittal Site Visit/Tour
A Mandatory Pre-Submittal Site Visit/Tour will be held on Monday, June 3, 2024, at 1 0:00 A.M. Pacific Daylight Time, in front of the Box Office at the City National Grove of Anaheim, 2200 E. Katella Avenue, Anaheim, California, 92806.
No late arrivals to the Pre-Submittal Site Visit/Tour. All Proposers must have a representative present at the pre-submittal Site Visit/Tour by 10:00 AM Pacific Daylight Time in order for their bid to be considered as responsive. Proposers are each limited to a maximum of six attendees at the Pre-Submittal Site/Tour.
Attendance at the Pre-Submittal Site Visit/Tour is mandatory. Please bring a copy of the RFP with you as no additional copies will be provided at the Site Visit/Tour. The purpose of the Pre- Submittal Site Visit/Tour is to provide Proposers an opportunity to tour the venue. Proposers are requested to submit any questions concerning the requirements of this bid solicitation through the City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal, for RFP# 575_MANAGEMENT_AND_OPERATIONS_OF_THE_CITY_NATIONAL_GRO
VE_OF_ANAHEIM_5_10_2024, preferably in advance of the Pre-Submittal Site Visit/Tour.
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No transcript of the Pre-Submittal Site Visit/Tour shall be prepared. Oral responses given during the Pre-Submittal Site Visit/Tour are considered tentative. All questions proposed during the Pre- Submittal Site Visit/Tour should be submitted as indicated in section 4.5.
4.4.2 Examination of The Grove Facility and Its Operation
Proposers are responsible for making all necessary investigations and examinations of bid documents and existing exclusive facility contract documents and exhibits, as well as investigations and examinations of The Grove facility and its operation. The Proposers shall be responsible for acquainting themselves with the physical locations and characteristics of The Grove and the utilities and other facilities available thereto. Proposers shall judge for themselves all of the circumstances affecting their bid proposal. Failure to do so will not be grounds for any claim that the Proposer did not understand the conditions of this bid solicitation and will not act to relieve any condition of the contract or bid proposal documents. The submission of a bid propo sal shall be considered conclusive evidence that the Proposer has made such investigations and examinations.
A venue tour will follow a brief Pre-Bid introduction which begins at 10:00 am per Section 4.4.1.
4.5 Clarification and Questions Regarding Request For Proposal
At any time during this bid solicitation period up to Monday, June 10, 2024, at 4:00 PM Pacific Daylight Time, Proposers may request a clarification of any aspect of the bid proposal. Requests shall be made through the City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal, for RFP# 575_MANAGEMENT_AND_OPERATIONS_OF_THE_CITY_NATIONAL_GROVE_OF_ANAH EIM_5_10_2024. The City’s Planet Bids Vendor Portal,
www.anaheim.net/vendorportal will not accept
submittals after the deadline.
The City/CS&E shall not respond to oral requests except those made at the pre-submittal conference. Oral responses given at the Pre-Submittal Site Visit/Tour shall be tentative responses. Any oral response at the pre-submittal conference that is not confirmed in any subsequent addendum will not be official or binding on the City/CS&E. Only written responses provided as addenda shall be official and all other forms of communication with any officer, employee or agent of the City /CS&E shall not be binding on the City/CS&E. Any addenda prepared in response to a request for clarification will be sent to all Proposers in attendance at the Pre-Submittal Site Visit/Tour.
Proposer representatives, legal counsel or anyone affiliated with the Proposer are prohibited from communicating or lobbying in any other manner about this project with any employee of The Grove , Nederlander employee, other City/CS&E employee, City elected official, or evaluation committee member from the date of issuance of this RFP until the final award is made. The incumbent operator may maintain normal communications about the day- to-day operations of The Grove but will be directed to avoid discussions about this RFP process. Also, any other Proposers who currently offer services or otherwise conduct business in the Anaheim area should continue to do so, but any discussions about this RFP or management of The Grove should not occur.
4.6 Historical Revenues
The City/CS&E has long benefited from a partnership with a contract manager. The table below illustrates the gross revenues earned from operations at The Grove and the amounts paid to the City/CS&E for the last five years (inclusive of parking revenues):
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Fiscal
Year
Ending
Grove Operations
Gross Revenues
Grove Operations
Net Income
Grove
Commissions Paid
to City/CS&E
2019 $8,721,523 $422,736 $377,193
2020 $5,157,897 ($939,426) ($204,883)
2021 $6,094,523 $24,487 $14,692
2022 $8,747,352 $549,774 $383,785
2023 $10,748,510 $1,119,445 $819,805
The annual parking licese fee will be included as a Grove operating expense. The remaining p arking revenues will be included in the operating revenue split between the City and the successful Proposer.
Gross revenues earned from parking operations for the last five years:
Year Gross Parking Revenues
2019 $508,380
2020 $89,902
2021 $196,321
2022 $426,527
2023 $594,954
The current parking rates paid by attendees at The Grove is as follows:
Parking Rate
Prepaid Parking Rate at Ticket Point of Sale for Non-
Family/Tribute Events:
$20
Day-Of Onsite Parking Rate for Non-Family/Tribute Events: $25 Prepaid Parking Rate as Ticket Point of Sale for Family/Tribute Events:
$16
Day-Of Onsite Parking Rate for Family/Tribute Events: $20
4.7 Additional Information
The City has made available a variety of venue information, which can be accessed here:
https://www.dropbox.com/scl/fo/jxlr0mdebmlnrgi489v7h/APYXXIyubabmLzLxFfGf5ZQ?rlkey=5k95jr mejphsjhlykj6qpoevb&st=6uqk0fk2&dl=0
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4.8 Evaluation Criteria
An internal Evaluation Committee selected by the City/CS&E will review the proposals received. The final ranking of the consultants will be based upon qualifications evaluated from on the criteria below.
The criteria and their associated weights, upon which the evaluation of the proposals will be based includes, but is not limited to, the following criteria:
Evaluation Criteria Points
Background, Qualifications and Experience of Proposer (25 points) – Company background and history; relevant experience with similar projects; client references; adherence to stipulations of RFP; cultural fit with City; adequacy of resources; understanding of various facets of venue management. Proposals should clearly identify the company hierarchy and include relevant experience of applicable staff with similar projects. 25 Operating Plan (25 points) – Understanding and discussion of scope of work; methodology and plan of operations; innovation and thoroughness in work approach; transition experience; proposed manager; reporting. 25 Compensation Proposal (35 points) – Total anticipated revenue to City for this project.
35 Financial Strength (15 points) 15
TOTAL 100
4.9 Disqualification of Proposers
In addition to any provision provided in this bid solicitation, any one or more of the following causes will be considered as sufficient for the disqualification of a Proposer and the rejection of the Proposer’s bid:
4.9.1 Non-compliance with Section 2.4 “Minimum Qualifications.”
4.9.2 Delivery of proposals after the deadline for specified bid opening.
4.9.3 Failure to attend the mandatory Pre-Submittal Site Visit/Tour.
4.9.4 The Proposal is not signed.
4.9.5 Proposal does not meet specifications and requirements in some material way.
4.9.6 Inability to begin full operations on January 1, 2025.
4.9.7 Failure to provide Financial Statements as defined in Appendix B.
4.10 Bid Proposal Form & General Questionnaire
All bids must be made on the official Bid Proposal form furnished by City/CS&E, submitted digitally via the City/CS&E’s Vendor Portal, www.anaheim.net/vendorportal RFP# 575_MANAGEMENT_AND_OPERATIONS_OF_THE_CITY_NATIONAL_GROVE_OF_ANAH EIM_5_10_2024, no later than 4:00 PM Pacific Daylight Time on Wednesday, July 10, 2024.
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The City/CS&E assumes no responsibility and is not responsible for the failure of proposals to be received by the submittal deadline. It is neither the City/CS&E’s responsibility nor obligation to acknowledge receipt of any proposal as a result of the RFP process.
Any Proposer may withdraw their proposal from the City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal at any time prior to the submittal deadline. Proposers may resubmit a complete replacement of any withdrawn proposal the City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal at any time prior to the submittal deadline.
The City’s Planet Bids Vendor Portal, www.anaheim.net/vendorportal will not accept submittals after the deadline.
Discussions may be conducted with a responsible Proposer capable of being selected for the award for the purpose of clarification. The City/CS&E reserves the right to accept or reject any or all proposals received as a result of this request, to negotiate with any qualified sources, to cancel, in part or in whole, this RFP , or to proceed with the work in any manner as may be considered in the best interest of the City.
The written bid proposal must be signed in ink by a company/corporate representative duly authorized to sign the bid proposal in the space provided for signature on the bid proposal form. The proposal shall provide the name, title, address and telephone number of representatives with authority to contractually bind the company and who may be contacted during the contract term. A copy of the Bid Proposal form is attached hereto and incorporated herein as Appendix A. Physical delivery and facsimile transmission of the executed bid proposal form is not acceptable and shall be rejected.
The City will not merge, collate, or assemble proposal material.
The information sought on the General Questionnaire must be provided to the City/CS&E in order to properly evaluate the experience , operating plan/infrastructure management, client service approach and financial proposal and strength of Proposer.
4.11 Bid Proposal Opening
All bids will be downloaded and opened from the City/CS&E’s Vendor Portal, www.anaheim.net/vendorportal for review by members of an Evaluation Committee.
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4.12 Award of Contract
Contract will be awarded by the City/CS&E, if at all, to the Proposer who is in compliance with the submittal requirements of the RFP, whose reputation, business and financial capabilities are judged to be most responsible and whose proposal best meets the evaluation criteria as determined by the Evaluation Committee. An Evaluation Committee comprised of CS&E staff will evaluate proposals. Outside experts may be consulted during this process.
Upon completion of the qualifications -based evaluation and ranking of proposals, the City will initiate negotiations with the most highly qualified firm to arrive at a fair and reasonable compensation given the proposed scope of work. If the City and the firm are unable to negotiate a contract, the City may terminate negotiations and initiate negotiations with the next most qualified firm.
Proposers may be required to give an oral presentation of their proposal to the Evaluation Committee. This will provide an opportunity for the Proposer to clarify or elaborate on their proposal, but not change the Proposer’s original proposal.
The City reserves the right to accept, reject, and to waive any minor informalities in any offer not deemed to be in the best interest of the City or negotiate modifications to any proposal as it shall determine in its sole discretion to be in the best interest of the City. However, each Proposer must provide all information as requested in order for the proposal to be considered and may be disqualified for failure to submit any required attachment/exhibit/schedule, or for submitting incomplete or nonresponsive information, exhibits, attachments or schedules. Failure to include all the items may result in a proposal being rejected.
4.13 Execution of Contract – Approval by Anaheim City Council
Within forty-five (45) calendar days after the Bid Award, or within such further time as City/CS&E may allow, the successful Proposer shall execute and submit to the City/CS&E the contract together with the proof of the insurance required in Appendix C, Example Agreement.
Failure to execute and submit the contract together with the proof of insurance as foresaid shall be just cause for the cancellation of the award. If the successful Proposer refuses or fails to timely execute the contract, City/CS&E may award the agreement to the next highest responsible Proposer.
City/CS&E reserves the right to cancel the award of the agreement at any time prior to the signing of the agreement by the Anaheim City Council.
5.0 SCOPE OF SERVICES
5.1 Day-to-Day Management and Operation
Proposer to ensure that the facilities are kept clean, safe and sanitary and maintained in good working order.
Conduct repairs as necessary, certifying that work is compliant with, and when possible, exceeds, City, County, State and Federal regulations. Provide, or cause to be provided, all incidental services required in connection with the facility or its events, including promotional activities, premium seating and/or sponsorship sales, food service (catering and concessions, including alcohol sales), ti cket related services and other such services. Ensure grounds and parking lot are properly manicured and are free of debris.
Maintain an adequate staff of courteous and efficient employees at the facility and provide appropriate supervision of such employees.
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The agreement that is executed based on this RFP will contain the following provisions:
5.1.1 The successful Proposer will be required to include, as an annual operating expense of The Grove, a line item for capital repairs & replacements in the amount of $100,000 or higher, as required by the City, and will be remitted, to CS&E, on a monthly basis. Amounts in the capital reserve will be remitted upon approval by CS&E.
5.1.2 The successful Proposer will be required to deliver to City a comprehensive Capital Asset schedule attached to the monthly Financial Statements. An initial asset list will be provided by the CS&E.
5.1.3 The designated General Manager of the successful Proposer will attend the bi-annual meetings of the SOA.
5.2 Sales, Marketing, Booking, Scheduling
In adherence to the facility’s formal booking policy, deliver robust sales, marketing, booking and scheduling activities for The Grove.
The agreement that is executed based on this RFP will contain the following provisions:
5.2.1 The City will receive eight (8) complimentary tickets in contiguous seating in a prime location to all ticketed events.
5.2.2 The City shall be entitled to complimentary parking credentials for up to thirty (30) vehicles for use in The Grove parking lot.
5.2.3 The City may designate, to Anaheim-based performing arts organizations, the use of the Facility for up to five (5) days per year of operation at no rental charge.
5.2.4 The City will have the right to use The Grove up to five (5) days per year at no rental charge (out- of-pocket expenses, food & beverage reimbursed at cost).
Please note the current naming rights agreement for The Grove will expire on December 31, 2024, and the successful Proposer will be expected to manage the process of securing a new agreement. Currently, the revenue from naming rights is a split between the operator and City, outside of the management agreement; however, it is the City’s desire that the revenue from a new naming rights agreement will be included in the annual operating budget of The Grove.
5.3 Report Preparation
Collect all revenues generated through the operation of The Grove and document and spend all monies necessary for the proper management, operation, maintenance, and supervision of The Grove. Prepare and submit annual and monthly financial, operating, maintenance, management and other such reports as required by the City.
5.4 Annual Plan and Operational Budgets
Develop annual plans and operational budgets for the City which have defined performance measures.
Comply with the spending limitations imposed by such plans and budgets. Upon conclusion of the fiscal year, and delivered to CS&E , conduct an audit by a certified public accounting firm to develop audited financial reports and to certify compliance with generally accepted accounting principles.
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5.5 Advise
Provide such advice and assistance in relation to the operation, management, maintenance and supervision of The Grove as the City may require including, but not limited to, recommending potential changes to sources of revenue, partnerships, prices and policies and other such practices that could potentially add to the financial success of the venue.
5.6 Client Communications
Respond in a timely manner to reasonable requests from the City and its agents or counsel.
6.0 OTHER REQUIREMENTS, TERMS AND CONDITIONS
6.1 Safety
Proposer shall be required to comply with all Federal, State, County, City, and OSHA requirements.
6.2 Non-Discrimination, ADA (Americans with Disabilities Act) Requirements
Proposer shall be required to comply with all ADA requirements as may be applicable.
The City notifies all possible respondents that no person shall be excluded from participation in, denied any benefits of, or otherwise discriminated against in connection with the award and performance of any contract on the basis of race, religious creed, color, national origin, ancestry, physical disability, sex, age, ethnicity, or on any other basis prohibited by law.
All Respondents shall comply with all applicable laws regarding equal employment opportunity and nondiscrimination. They shall also comply with the Americans with Disabilities Act (ADA).
6.3 Protection & Repair
Proposer shall take timely, reasonable, and necessary action to protect and preserve all property in the possession of the Proposer in which the City/CS&E has an interest.
Proposer agrees not to commit, intentionally permit, or intentionally allow any injury or damage to any part of The Grove facility, premises, and appurtenances thereto. If the Proposer breaches the conditions hereof, City/CS&E is expressly authorized to restore The Grove facility, premises or other appurtenances and to make such repairs, as may be necessitated by any such injury or damage, and the Proposer agrees to pay the City/CS&E within ten (10) calendar days after the receipt of a statement of the cost of such repairs the full amount due as shown on the statement. Such expenses shall not be part of Direct Operating Expenses and shall be the Proposer’s responsibility.
6.4 Acceptance of Premises
Proposer accepts the premises in its present condition and acknowledges it has inspected same and is fully cognizant of existing conditions. Improvements desired for the facility or parking lot must be approved by the City/CS&E prior to the commencement of any work.
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6.5 Access to Premises
City/CS&E shall have the right to enter the premises to inspect at reasonable times during operating hours, to determine if Proposer has complied and is complying with the terms and conditions of the awarded contract. The City/CS&E may enter the premises at any time, in the case of an emergency affecting the public interest or property.
6.6 Surrender of Premises
The Proposer shall peaceably surrender and deliver to the City/CS&E possession of the premises and improvements thereupon on the date of termination of the agreement.
Upon termination of the agreement designating the Proposer’s Exclusive status, the Proposer shall remove all Proposer’s employees’ personal property in such a manner as to cause no damage to the facility, and in the event of any such damage, the Proposer agrees, at its own cost and expense, to repair and/or restore premises to the original condition or to a condition satisfactory to the City/CS&E.
If the Proposer fails or neglects to remove all or any portion of its merchandise, equipment, trade fixtures and/or personal property within fifteen (15) calendar days after the termination of the contract, City/CS&E, at its sole option and without prior notice to the Proposer, may either remove and/or dispose of the same and charge the cost of such removal and/or disposal to the Proposer, which costs the Proposer hereby agrees to pay, or City/CS&E may consider the same to be abandoned and take title thereto in the name of the City/CS&E.
In general, upon termination of the agreement designating the Proposer’s Exclusive status, the Grove shall be returned in the same or better condition than when the agreement was initially executed, normal wear and tear excepted.
Also upon termination, the Proposer and City/CS&E will mutually conduct a walkthrough with the then- current list of furniture, fixtures, equipment, and smallwares, in order to verify the presence of such items.
6.7 Alteration To Premises
No excavation, additions or alterations shall be made by the Proposer to the facility and its premises and/or appurtenances without the prior written consent of the City/CS&E. The use of the facility and its appurtenances by the Proposer and its employees or agents in any manner other than that authorized herein must be approved by the City/CS&E.
6.8 Taxes
Proposer shall pay any and all taxes, including but not limited to, real property, personal property, sales tax and possessory interest or use tax, assessed or levied on Proposer’s or ACC's interest in the agreement, Proposer’s real or personal property, and/or improvements constructed in ACC’s property by Proposer.
6.9 Insurance and Indemnification Provisions
See Appendix C, Example Agreement, for Insurance and Indemnification requirements.
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6.10 Permits and Licenses
The successful Proposer shall be responsible for determining and securing, at his/her expense, any and all licenses and permits that are required by any statute, ordinance, rule or regulation of any regulatory body having jurisdiction in any manner connected with providing operations and maintenance of the facility.
Such fees shall be included in and are part of the total proposal cost.
6.11 Conflicts of Interest
The Proposer represents that neither the Proposer, nor any employee or agent of the Proposer, presently has any interest, and promises that no such interest, direct or indirect, shall be acquired, that would or might conflict in any manner or degree with the Proposer’s performance under the contract.
6.12 Confidentiality of Material
All material given to or made available to the Proposer by virtue of the contract documents, which is identified as proprietary or confidential information, will be safeguarded by the Proposer and shall not be disclosed to any individual or organization without the prior written approval of the City.
6.13 Notice Regarding Disclosure of Contents of Proposals; Trade Secrets
All responses to this RFP accepted by the City/CS&E shall become the exclusive property of the City/CS&E. Upon opening, all proposals accepted by the City/CS&E shall become a matter of public record and shall be regarded as public, with the exception of those elements of each proposal which are identified by the Proposer as business or trade secrets and plainly marked as “trade secret”, “confidential” or “proprietary”. Each element of a proposal which a Proposer desires not to be considered a public record must be clearly marked as set forth above, and any blanket statement ( i.e., regarding entire pages, documents, or other non-specific designations) shall not be sufficient and shall not bind the City/CS&E in any way whatsoever. The City/CS&E will take reasonable measures to hold in confidence all such labeled information and documentation; provided, however, the City/CS&E shall not in any way be liable or responsible for the disclosure or release of any such records or part thereof when authorized or required by law or court order to do so, whether pursuant to the California Public Records Act or otherwise (despite the bidder’s request for confidentiality). Further, the City/CS&E shall also be immune from liability for disclosure or release of information under the circumstances.
The City/CS&E shall not infringe upon any intellectual property right of any Respondent but reserves the right to use any concept or methods contained in the proposal. Any desired restrictions on the use of information contained in the proposal should be clearly stated. Responses containing your proprietary data shall be safeguarded with the same degree of protection as the City’s own proprietary data. All such proprietary data contained in your proposal must be clearly identified.
6.14 Ownership of Materials
The City shall not be under any obligation to return any materials submitted in response to this RFP request.
All documents submitted in response to this RFP will become the property of the City.
6.15 Use of the City of Anaheim’s name
The use of the City of Anaheim’s name in any way as a potential customer is strictly prohibited except as authorized in writing by the City/CS&E.
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Appendix A
P R O P O S A L F O R M
MANAGER AND OPERATOR SERVICE PROVIDER
CITY NATIONAL GROVE OF ANAHEIM
IN ORDER TO BE CONSIDERED FOR DESIGNATION AS THE MANAGER AND OPERATOR OF THE CITY
NATIONAL GROVE OF ANAHEIM, ALL COMPANIES RESPONDING TO THIS REQUEST FOR PROPOSAL
MUST COMPLETE AND SUBMIT THIS PROPOSAL FORM AND PROVIDE THE INFORMATION SOUGHT IN THE GENERAL QUESTIONNAIRE, ATTACHED AS APPENDIX B.
COMPANY NAME
ADDRESS
CITY STATE ZIP
TELEPHONE FAX
FINANCIAL PROPOSAL:
Calendar Year
Initial Agreement Term Extensions
2025 2026 2027 2028 2029
Percentage of Grove Net Income*
paid by Proposer to City. Shall not
be less than 60% and any operating
losses are the sole requirement of
Proposer.
______% ______% ______% ______% ______%
Flat Annual Parking License paid by
Successful Proposer to City*
$265,000 $ CY
2025+CPI
$ CY
2026+CPI
$ CY
2027+CPI
$ CY
2028+CPI
*Flat fee increased annually by CPI for the Los Angeles-LongBeach- Anaheim area
SUBMITTED BY:
PRINT NAME DATE
SIGNATURE**
TITLE
** By signing, you acknowledge and agree to the required Flat Annual Parking License and its increase calculations Request for Proposal – Management and Operations of the City National Grove of Anaheim- May 10, 2024 Page | 20
Appendix B
G E N E R A L Q U E S T I O N N A I R E
E X P E R I E N C E A N D Q U A L I F I C A T I O N S
The City/CS&E asks that each Proposer include responses to the following questions. The information provided will assist in the evaluation of your experience and qualification to perform the anticipated management services at The Grove.
GENERAL BUSINESS INFORMATION TO BE PROVIDED
1. Provide a transmittal letter that specifically states the Proposer’s understanding of the work to be accomplished and briefly outlines the responder's strengths in providing the required services. This letter should be signed by an authorized corporate officer for each entity included as a team proposal.
2. Include the name of Proposer’s firm/entity, address, telephone number, name of contact person, and the title of the RFP.
3. Provide a description of the proposing entity's current legal status (i.e., Corporation, Partnership, Sole Proprietor, Joint Venture, etc.)
4. Provide the proposing entity's current Federal Employer Identification Number and State Tax ID number.
Background, Qualifications and Experience (40 pages maximum) 25 Points
1. Provide a profile of your organization and describe its legal structure, principal officers and organizational structure.
The Proposer must identify and distinguish between its own experience and qualifications and that of any parent entity, predecessor and/or wholly-owned or partially-owned subsidiary of the Proposer.
2. Provide resumes of key personnel and principals of the organization. Identify the extent to which each principal executive or staff member will be involved in the management of The Grove and whether such involvement will be on a fully informed daily basis or in an advisory capacity.
3. Provide a complete and detailed history of your organization's facility management experience for the last five years. Information provided should include a description of services provided and examples of successful operational strategies. Include examples of creative thinking with regards to event booking, revenue generation, and cost savings. If your firm has existed less than five years, describe the work history of the top levels of management.
4. Provide a list of all facilities managed by your organization that are similar in nature to The Grove (primarily live entertainment and/or sporting events).
5. Provide a list of all facilities (name, location, type and capacity/size) within a 50-mile radius of Anaheim, CA that are (or anticipated to be) managed by your organization and if any would be considered competitors of The Grove.
6. Provide a list of any contracts for management and operation services held by your organization that were terminated in the last ten (10) years and the reasons for such termination.
7. If applicable, describe your experience in transitioning your firm into a venue where a private company (not a municipality or governmental entity) was the incumbent. Discuss the challenges of that type of situation and how you managed a successful transition.
8. Describe your general familiarity with Anaheim and southern California region.
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Operating Plan (75 pages maximum) 25 points
1. Management Plan (provide information related to all items below) a. If applicable, an overview of the plan for transitioning employees from the incumbent operator to your organization, including key steps, a timeline of critical milestones and a description of roles and responsibilities; identify how existing staff may be retained; identify costs to the City for the transition and provide an estimate based on your past transitions; propose a method for advising the City should incumbent employees find alternate employment prior to your firm’s official start date and how the challenges of that situation could be mitigated;
b. A suggested management organizational chart for full time staff, including contracted services as well as positions at the corporate and local levels; identify up to three (3) proposed General Manager candidates if available and if necessary;
c. Description of the suggested reporting structure between facility management and your corporate offices and to the City;
d. Actual examples of management/financial reports used by your organization to advise of performance; e. Description of positions responsible for maintaining the facility to an acceptable industry standard in terms of The Grove’s physical condition with regards to maintenance and repair; f. Description of how you would manage 3rd party service contracts, and where within The Grove you envision their application; please identify any Proposer -affiliated firms that you would recommend using for this project;
g. Description of your approach to providing food service (concessions and catering) at The Grove including the incorporation of local and/or national brands, purchasing leverage, etc., and whether you intend to self- operate or subcontract and why;
h. Description of your approach to maintenance and repair, including the use of a computerized maintenance management system;
i. Description of your approach to risk management and safety/security of guests, employees, and facility users;
j. Description of your security measures and controls to avoid cybercrimes, such as malware attacks, phishing campaigns, Denial-of-Service attacks, insider threats, etc.; k. Description of your approach to sales related to sponsorships, advertising, and premium seating (especially larger items such as naming rights and pouring rights). Describe any commission structure on the sale of advertising, sponsorship and premium seating; be sure to address existing contract renewals as well as new sales and renewals thereafter;
l. Description of how you balance the free speech of employees with the need to maintain a positive public image for your firm, The Grove, and the City.
2. Marketing Plan
a. Provide an overview of marketing and promotional concepts that will further the goals of The Grove, including for both the building proper as well as for events. Cite past, actual examples from other venues; b. Describe your approach to booking/scheduling, promoting, advertising and marketing events at The Grove; c. Describe past experiences in working with resident tenants in addition to marketing and booking such events. Describe how event scheduling and promoting will be coordinated with tenants.
3. Financial Plan
a. Summarize your proposed strategy and approach for minimizing operating expenses and maximizing operating revenues;
b. Please provide a description of your firm’s role with respect to identifying and prioritizing capital improvements;
c. Identify any cost(s) to the City for any other compensation (beyond the management fees), commission, rebate or financial remuneration you would receive under the contract, whether from the City, a vendor or other entity;
4. Customer Service Plan
a. Describe your overall approach to customer service and enhancing the guest experience. Include technology that your firm would deploy, processes and procedures, training, and how you self -monitor the guest experience; describe the criteria used to determine appropriate guest services endeavors, and how corrective measures would be taken.
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Compensation Proposal 35 points
1. The compensation proposal shall mirror the current structure, where (a) the selected Proposer’s fees will be from a split of the net operating income for the management of The Grove and (b) the selected Proposer will pay a flat fee to the City for the rights to operate the parking spaces and will incorporate the balance of revenue into the operating revenues of The Grove.
2. The current operator pays to the City 60% of the net operating income of The Grove and pays to the City a parking license fee that is subject to annual increase based on the percentage change of CPI ; in 2023, the current operator paid $250,375. See Appendix A for current Parking License Fee and future projection methodology.
3. The City does not wish to entertain any alternate fee structures, nor does it seek any form of capital contribution from the successful Proposer.
Financial Strength 15 points
1. Provide a minimum of three business references and three financial references respectively for a total of six references. A financial reference can be a bank, creditor or lending institution.
2. Provide Proposer’s Year End Financial Statement, including a balance sheet, income statement, and statement of cash flow with all footnotes and disclosures in accordance with Generally Accepted Accounting Principles (GAAP) for the last three (3) full fiscal years of operation.
3. What person(s) will be responsible for financial accounting of revenue generated at The Grove ? Provide a description of his/her qualifications and experience.
OTHER INFORMATION TO BE PROVIDED
1. Provide a copy of an Annual Report submitted by your firm to a client of a managed public assembly venue facilitating live music.
2. Provide a copy of your most recent executed management agreement for services provided for venue operations that are similar to the operations of The Grove.
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Appendix C
EXAMPLE AGREEMENT
Will be provided at a later date, but anticipated no later than June 3, 2024.
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Appendix D
Parking License Agreement and Addenda
Begins on Following Page
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Appendix E
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Appendix F
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Appendix G
Unaudited Furniture, Fixtures, and Equipment Including Smallwares
Will be provided at a later date, but anticipated no later than June 3, 2024.
1 Addendum #1
City National Grove of Anaheim
Request For Proposals
Management and Operations of the City National Grove of Anaheim May 10, 2024
Addendum #1 – Distributed Friday, May 10, 2024
The City of Anaheim issued an RFP on Friday, May 10, 2024, for the Management and Operations of the City National Grove of Anaheim.
The Addendum #1 clarifies and changes the bid due date for Proposals to:
Wednesday, July 10, 2024, at 4:00 PM Pacific Daylight Time
References to the Proposal due date in Sections 1.0, 4.2, and 4.10 are changed to Wednesday, July 10, 2024, at 4:00 PM Pacific Daylight Time
Addendum #2
City National Grove of Anaheim
Request For Proposals
Management and Operations of the City National Grove of Anaheim May 31, 2024
Addendum #2 – Distributed Friday, May 31, 2024
The City of Anaheim issued an RFP on Friday, May 10, 2024, and a First Amendment also dated Friday, May 10, 2024, for the Management and Operations of the City National Grove of Anaheim.
The Addendum #2 includes the following pending items as indicated in the RFP:
Appendix C Example Agreement
Appendix G Unaudited Furniture, Fixtures, and Equipment Including Small Wares
2 Appendix C
EXAMPLE AGREEMENT
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 Appendix G
Unaudited Furniture, Fixtures, and Equipment Including Smallwares
Capital Expenses:
24 25
26 27
28 29
30 31
32 33
34 35
36 37
38 F&B Kitchen:
39 40
41 42
43 F&B Offices:
44 F&B Trailers:
45 F&B Greater Than $5K:
46 47
48 49
50 51
52 F&B Front of House:
53 54
1 Addendum #3
City National Grove of Anaheim
Request For Proposals
Management and Operations of the City National Grove of Anaheim May 10, 2024
Addendum #3 – Distributed Friday, June 21, 2024
The City of Anaheim issued an RFP on Friday, May 10, 2024, for the Management and Operations of the City National Grove of Anaheim.
The Addendum #3 provides answers to the questions captured during the Monday, June 3, 2024, mandatory pre-bid meeting as well as the questions submitted through Planet Bids prior to the deadline for submitting questions on Monday, June 10, 2024, at 4:00 PM.
Questions Received During Pre-Bid Meeting on Monday, June 3, 2024:
1Q: How is the lounge accessed by guests?
1A: The lounge is directly accessible by four entrances and may be private or open depending on how an event would like to use the space:
• There is an exterior entrance from the parking lot.
• There is an exterior entrance from the main entrance patio. • There is an interior entrance from the grand foyer.
• There is an interior entrance from the main seating area. 2Q: Can you sell seats in section 5 of the main seating area if a concert is setting up their stage equipment there? 2A: The current manager usually holds back selling seats in this area until the event let’s them know if they will use the area for staging equipment.
3Q: What are the rolldown doors in the hallway of stage left used for? 3A: Storage.
4Q: Is the main drive entrance off Stadium Crossing Rd. shared with the Stadium? 4A: The main drive entrance is shared with the Stadium for only their employees and Uber/Lift operations. 5Q: Where is the Grove employee parking?
5A: It depends on the event, however, must be accommodated in the Parking License Agreement area. 6Q: What is the exterior fenced-in open area to the north of the building used for?
2 6A: Storage and employee break areas.
7Q: What are the naming rights options?
7A: The current naming rights agreement is with City National Bank, which is set to expire on December 31, 2024. It is the expectation that the successful proposer has the ability to negotiate a naming rights sponsorship with City National Bank or another entity; which City approval of any name will be required. 8Q: Does the current manager book in house?
8A: Yes.
Questions Submitted to Planet Bids by Due Date Monday, June 10, 2024:
9Q: Copies of the Settlement/Show Invoices for Three Most Recent:
o Concerts
o Private Events
9A: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information.
10Q: Copy of Capital Improvement Budget.
10A: There is no capital improvement budget.
11Q: List of Current Rental Rates
11A: While costs vary with each concert/special event, rental rates for concerts generally range from $15-30k (inclusive of expenses) depending on the day of the week and number of hours, and special events generally range from $12-20k (exclusive of expenses) depending on day of the week and food & beverage spend.
12Q: A detailed list of events (with event name and attendance) for 2022, 2023, and 2024 to date.
12A: See below number of events by month and type for 2022-2024 to date. Event names can be found on the dropbox link provided in the RFP.
3 4
13Q: List of All Current Full-Time Positions
13A: – There are 10 current full-time positions at The Grove
1. General Manager
2. Talent Buyer
3. Marketing Rep
4. Event Operations Rep
5. Box Office Rep
6. Facility Operations Rep
7. Production Rep
8. Special Event Reps (1 of 2)
9. Special Event Reps (2 of 2)
10. Administrative Rep
14Q: Current Organizational Chart
14A: All of the above positions effectively report to the General Manager
15Q: Copy of Current Concession and Catering Agreement, if operated by third party.
15A: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information. The current Concession and Catering Agreement does not commit the Grove operator to anything beyond December 31, 2024.
16Q: Copy of Current Ticketing Agreement with Ticketmaster
16A: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information. The current Ticketing Agreement does not commit the Grove operator to anything beyond December 31, 2024.
17Q: Copy of Current Naming Rights Agreement with City National Bank
5 17A: A copy of the current naming rights agreement with City National Bank can be found on the dropbox link provided in the RFP.
18Q: Copies of Security, Parking, and/or Other Third-Party Service Agreements
18A: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information. No service agreements commit the operator to anything beyond December 31, 2024.
Current third-party service agreements include the following:
1. Food Service
2. Ticketing
3. Security
4. Calendar Management
5. Parking Transactions
6. POS
7. Diagram Software
8. Scent Marketing
9. Security
10. Elevator Maintenance
11. HVAC Maintenance
12. Tech Rockstars
13. Internet Access & Telecom
14. Document Imaging
15. Website
19Q: Per the RFP, Proposers are asked not to include funding for capital improvements to the Grove in their responses. Is the City committed to dedicating funding for Grove improvements that will maximize revenue opportunities and elevate the overall event experience for users and guests to be competitive with existing venues in the market and potential new venues?
19A: No. Selected Manager to fund capital reserve per Section 5.1.1 of the RFP.
20Q: Will the ongoing OC Live Development have any impact on Grove operations, specifically the parking operation and available space inventory.
20A: No, there will not be any parking operations impacts related to the OC Vibe development at the Grove.
21Q: Does the current operator set the parking rates for each event and are all 550 spaces charged the same rate?
21A: The current operator sets the parking rates for each event. All 550 spaces are charged the same rate per event; however, the current manager provides a discounted rate for parking purchased at the time of ticket purchase. See Section
4.6 of the RFP for current rates.
22Q: Would the operator be able to activate parking operations for Angels baseball games or other nearby events and recognize the revenue generated from those events?
6 22A: No, parking space usage is only authorized during/for Grove event activity.
23Q: Would the parking lot be able to be used to host other events such as festivals, car shows, etc.
23A: No.
24Q: Is the City able to share a copy of the event technical/production packet?
24A: A copy of The Grove production packet can be found on the dropbox link provided in the RFP .
25Q: Are there any restrictions to Grove operations on Angels game days or other events in the area?
25A: No.
26Q: Are there any sound restrictions by code or agreement with the neighbors?
26A: Outdoor noise Anaheim Municipal Code is in effect.
27Q: Any restriction by the City on genres or types of shows preformed?
27A: No.
28Q: List of Services Performed by the City for the venue, if any.
28A: N/A
29Q: Inventory and/or list of equipment at the Grove owned by the City.
29A: Provided in Addendum #2.
30Q: Inventory and/or list of equipment at the Grove not owned by the City.
30A: N/A
31Q: Does the City or current operator hold the liquor license? Operator Any restrictions on the liquor license?
31A: The City does not hold the liquor license at the venue. Please perform your due diligence.
32Q: Is the City able to provide the following?
32Q1: More detailed P&L’s.
32A1: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information.
7 32Q2: KPI’s such as per caps, drop count, ATP, Avg Event CM for concerts and special events.
32A2: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information.
32Q3: Event night operating staff levels by position type, including per-event hourly staff such as security, housekeeping/janitorial, ushers, production, stagehands, F&B.
32A3: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information.
32Q4: List of special events and any long-term commitments or traditions that the City expects or prefers the new operator to honor (such as State of the City, CHOC, etc.).
32A4: City use defined in Section 8 of the Example Agreement included in Addendum # 2.
32Q5: Organizational chart (with or without names) for positions related to the venue.
32A5: There are 10 current full-time positions at The Grove
1. General Manager
2. Talent Buyer
3. Marketing Rep
4. Event Operations Rep
5. Box Office Rep
6. Facility Operations Rep
7. Production Rep
8. Special Event Reps (1 of 2)
9. Special Event Reps (2 of 2)
10. Administrative Rep
32Q6: Detailed floorplan or venue map (showing both FOH and BOH spaces/rooms, all entry/exit points, loading dock, etc.).
8 32A6: See Map:
32Q7: The GA-standing and seated capacities of the venue (including comps, holds, etc.).
32A7: GA Standing: 1,700
Seated: 1,280
32Q8: Material terms or copies of existing partnership agreements (including the City National Bank naming rights agreement) for strategic analysis of renewal and value.
32A8: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information. No service agreements commit the operator to anything beyond December 31, 2024.
Current third-party service agreements include the following:
16. Food Service
17. Ticketing
18. Security
19. Calendar Management
20. Parking Transactions
21. POS
9 22. Diagram Software
23. Scent Marketing
24. Security
25. Elevator Maintenance
26. HVAC Maintenance
27. Tech Rockstars
28. Internet Access & Telecom
29. Document Imaging
30. Website
33Q: Other than the agreements with the City as provided part of the RFP process, are there any agreements with third parties that will extend beyond January 1, 2025, and if so, what are the material terms, or alternatively, is the City able to provide copies?
33A: No agreements extend beyond December 31, 2024.
.
34Q: What is the amount of rent (or house nut amount) included in offer sheets for private and ticketed events, what expenses are included in the quoted rent/house nut, and what expenses are excluded?
34A: These documents are in possession of the current operator and operator has determined them to be proprietary and confidential information.
35Q: The RFP refers to the revenue share as 60% of “Net Income” and also as “Net Operating Income”. Can the City please clarify the definition of these terms? The Concessions Agreement uses the term “Operating Profits” and defines it as “excess of Revenues (all payments, fees and deposits of any nature received for use of the facility or services at the facility) over Operating Expenses”.
35A: All three terms in the RFP refer to the same financial measure as defined in the concession agreement
25 SCHEDULE I
Personal Property
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