1 AGREEMENT FOR BOOKING AND MANAGEMENT SERVICES
BY AND BETWEEN
THE CITY OF CATHEDRAL CITY,
LOCATIONS UNLIMITED INC.
AND
LOCATIONS 760
This Agreement for Booking and Management Services (“Agreement”) is entered into as of this 1 2th day of May , 202 2 (“Effective Date”) by and between the City of Cathedral City, a California Charter (“City”), Locations Unlimited, Inc., a California corporation and Locations 760, a Sole Proprietor (Locations Unlimited Inc. and Locations 760 are hereinafter collectively referred to as “ Service Provider”). City and Service Provider are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
WHEREAS, City is the owner of certain improved real property known as the Cathedral City Community Amphitheater, located in Cathedral City, County of Riverside, State of California, which is more particularly described on Exhibit “A” attached hereto and incorporated herein by reference (“Property” or “Amphitheater”); and WHEREAS, the City has sought the performance of the services defined and described particularly in Section 2 of this Agreement; and WHEREAS, Service Provider was selected through direct negotiation by the City to perform those services.
WHEREAS, Service Provider shall market the Amphitheater to provide for the booking of Events and in coordination with the City shall assist in executing the appropriate contract(s) between the City and Amphitheater Clients. Service Provider shall also oversee Events that occur at the Amphitheater.
OPERATIVE PROVISIONS
NOW, THEREFORE , in consideration of the mutual promises and agreements made by the Parties and contained herein and for other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. DEFINITIONS
(a) “Amphitheater Client” means an individual, business, organization or City department, which is obtained, procured and scheduled by Service Provider and is granted use of the Amphitheater for an Event or Event Day which may be open to the general public or to a private audience.
2 (b) “City Liaison” means the City Manager or his or her designee, who will administer the Agreement for the City and who will interface with Service Provider to facilitate open communication between the Parties with respect to the booki ng and management of the Amphitheater.
(c) “City Marks” shall mean any name or mark that (1) contains, in whole or part, name(s) and/or mark(s) (including service marks, trademarks, names, titles, descriptions, slogans, insignias, emblems or logos) of the City of Cathedral City; or (2) imparts the color of authority of the City of Cathedral City. City Marks shall not include the official Seal of the City of Cathedral City.
(d) “Event” means any activity that occurs at Amphitheater whether open to the general public or exclusive to a private audience.
(e) “Event Days” means any day in which Amphitheater is in use for any purpose to support any type of an Event. This includes but is not limited to, rehearsal, technical staging of lights and sound, set up and strike of stage and actual performance days. For the avoidance of doubt an Event Day shall include days, which cannot be rented to other Amphitheater Client(s) that are work days used to support a coming Event. Notwithstanding the foregoing, rehearsals or similar activities are not deemed to be an Event but are deemed to be Event Days.
(f) “Performing Artist” means any individual or group who perform any of a wide range of performance disciplines including , without limitation to , a play, musical, dance or similar performance Event for an audience at Amphitheater.
SECTION 2. GENERAL SCOPE; ENGAGEMENT OF SERVICE PROVIDER The City hereby engages Service Provider to promote and book Performing Artists to the Cathedral City Community Amphitheater subject to the terms and conditions of this Agreement and Service Provider hereby accepts such engagement.
SECTION 3. SERVICE PROVIDER SCOPE OF SERVICES
(a) Scope of Services. Service Provider shall provi de for the management and operation of Amphitheater as set forth in Exhibit “B” [Scope of Services]. (b) Changes to the Scope of Services. Parties may modify the Services by mutual agreement, in writing signed by the duly authorized representative of each Party.
SECTION 4. MUTUAL OBLIGATIONS
Parties shall work together to review issues and other matters related to the smooth, orderly and efficient booking and management of the Amphitheater. The Parties shall develop a proposed plan for remediation of any such issues. 3 SECTION 5. BILLING AND PAYMENT
(a) Invoice. Service Provider shall provide an invoice to the City detailing charges for work performed within thirty (30) days after the completion of an Event. (b) Payment. City shall pay Service Provider one thousand dollars ($1,000.00) for each completed Event that generates at least two thousand five hundred dollars ($2,500.00) but no more than five thousand dollars ($5,000.00) in revenue.
Further, City shall pay Service Provider twenty percent of the revenue received for each completed Event that generates five thousand and one dollars ($5,001.00) or more. No compensation shall be provided for Events that generate less than two thousand five hundred dollars ($2,500.00) in revenue. Payment for all services shall be due to Service Provider within thirty (30) days of City’s receipt of required invoice. (c) Fee Disputes. In the event the City disputes any particular item or amount on an invoice, City shall provide Service Provider with wr itten notice within seven (7) days of receipt of the invoice, stating the particulars of the dispute. The Parties shall mutually cooperate to resolve any such disputes in good faith and by mutual agreement.
All items not in dispute shall be paid as provided for above.
SECTION 6. EXPENSES PAID BY SERVICE PROVIDER
The Service Provider’s business and travel expenses are to be paid by the Service Provider and not by the City.
SECTION 7. CITY MARKS
(a) Use of City Marks. During the t erm of this Agreement, and subject to the terms and conditions of this Agreement, the City grants to Service Provider a limited, non-exclusive, non-transferable, worldwide, royalty free license to use the City Marks , as defined in Section 1, in connection with the operation and promotion of the Amphitheater and for the purposes of fulfilling Service Prov iders obligations under this Agreement (each a “Licensed Use” or collectively, the “Licensed Uses”). No other or different rights are granted hereunder to Service Provider and Service Provider shall have no right to use any of the City Marks apart from the Licensed Uses. Other than the express licenses granted herein with respect to the City Marks, nothing herein will grant Service Provider any other right, title or interest in the City Marks, which are reserved by the City.
(b) Conditions of Use. Service Prov ider agrees that the City Marks will always be reproduced as shown in Exhibit “ C” [City Marks] in their entirety with no alterations, obstructions or modifications. Service Provider agrees that it will comply with any additional trademark usage and guideli nes that City may communicate to Service Provider from time to time. Service Provider shall be required to obtain written approval of City Liaison prior to each use of the City Marks on any products, materials, or premiums designed, manufactured, marketed or sold under or pursuant to this Agreement or in connection with any marketing or promotional materials under this 4 Agreement provided such use: (i) is a Licensed Use and (ii) the appearance (e.g. form, color, type, style, orientation, etc.) of the City Marks is unaltered.
SECTION 8. TERM OF AGREEMENT
Subject to the provisions of Section 17 "Termination" of this Agreement, the initial term of this Agreement shall be for a period of two (2) year s commencing on the Effective Date fir st ascribed above. This Agreement shall renew automatically for a subsequent one (1) year term unless either Party provides written notice of nonrenewal at least ninety (90) days before the end of the initial term.
SECTION 9. SERVICE PROVIDER REPRESENTATIONS
(a) Standard of Performance. Servic e Provider shall perform services with the degree, skill and care observed by national firms performing the same or similar services.
(b) Compliance with Laws. Service Provider shall use the standard of care in its profession to comply with all applicable federal, state, and local laws, codes, ordinances, and regulations. Service Provider represents and warrants to City that it has and shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, pe rmits, insurance and approvals which are legally required for Service Provider to practice its profession. (c) No Discrimination. Service Provider shall not discriminate, in any way, in the employment of persons to perform the Services in violation of any f ederal or state law prohibiting discrimination in employment, including based on the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, of any person, except as provided under California Government Code Section 12940.
(d) Independent Contractor. Service Provider is not to be considered an agent or employee of City for any purpose, and neither Service Provider nor any employees of Service Provider are entitled to any of the benefits that City provides for City's employees. It is understood that Service Provider is free to contract for similar services to be performed for other cities, persons or entities during the term of the Agreement.
Service Provider shall be fully responsible for all income, social security or other taxes or deductions relating to the services it performs for City.
SECTION 10. CITY REPRESENTATIONS
(a) Authority. City represents and w arrants that it owns and controls the Amphitheater. City has the authority to enter into this Agreement with Service Provider for the booking, management and operation of the Amphitheater and for the production of entertainment, performing arts, school and community events. 5 (b) Maintenance and Repair of the Amphitheater . City shall maintain, or cause to be maintained the buildings, appurtenances and grounds of the Amphitheater in substantial compliance with applicable laws, statutes, ordinances and regulations in accordance with commercial reasonable standards, including such maintenance as, without limitation thereof, electrical and plumbing, equipment, carpentry, and such other normal maintenance and repair work as may be reasonably necessary. (c) Acknowledgment of Risk . City acknowledges that the production and promotion of Events in the entertainment and cultural arts industry have associated inherent risks, which include but are not limited to financial and other general liabilities.
Both Parties also acknowl edge that a decision to produce entertainment, recreation, cultural Events, or any specific Event, may at times be made by City for reasons other than financial profit potential and that at times City may elect to produce Events which will require financial subsidy in order to achieve other community service objectives.
SECTION 11. EXCLUSIVE PEPSI BEVERAGE AGREEMENT
During the term of this Agreement, Service Provider shall notify all Amphitheater Clients and vendors of the City’s Beverage Agreement with Pepsi Co., attached hereto as Exhibit “D”. All Amphitheater Clients and vendors booked through Service Provider shall purchase soda products and other covered beverages using the City’s account code per the City’s Bevera ge Agreement with Pepsi , where applicable. All rebates earned for sale of covered beverages made on the Property will be paid to City and Service Provider shall not have claim to these funds.
SECTION 12. CONCESSIONAIRE AGREEMENT
During the term of this Agreement, Service Provider shall notify all Amphitheater Clients and vendors of the City’s Concessionaire Agreement with Kick Back Cinemas, LLC, attached hereto as Exhibit “E” where applicable.
SECTION 13. PERSONAL SERVICES NOT REQUIRED
(a) Employees. Service Provider shall have sole responsibility and authority in the selection, hiring, compensation, benefits, training, supervision, discipline and/or discharge of all Service Provider employees. For all purposes, all Service Provider employees shall be deemed to be only employees of Service Provider and not the City.
In the event that City requests or requires training unique to the City, City shall reimburse Service Provider for costs associated with employee time and expenses of employees to attend such training.
(b) No Co-Employment. In consideration of the liabilities that may accrue to a co-employer, Parties agree that they shall not be co- employers. Service Provider employee(s) assigned to work at the Amphitheater shall work exclusi vely for Service Provider. City shall have no authority in the selection, hiring, compensation, benefits, supervision, discipline and/or discharge of any employee of Service Provider. City Project Liaison and or City personnel shall not direct Service Provider employees. 6 SECTION 14. NO SET WORK HOURS
The Service Provider has no set hours of work. There is no requirement that the Service Provider work full time or otherwise account for work hours.
SECTION 15. SOCIAL MEDIA; OWNERSHIP OF SOCIAL MEDIA CONTACTS Service Provider may, in fulfillment of the obligations set forth in this Agreement, create and/or use social media accounts (including, but not limited to email addresses, blogs, Twitter, Facebook, YouTube, or other social media networks) for the promotion of the Amphitheater . City reserves the right to amend , limit and/or terminate Service Provider’s authority to use social media accounts promoting the Amphitheater at any time. Service Provider shall not have access to City controlled social media accounts.
Any social media c ontacts, including “followers” or “friends” that are acquired through accounts created by the Service Provider (including, but not limited to email addresses, blogs, Twitter, Facebook, YouTube, or other social media networks) used in promotion of the Amphitheater are the property of the Service Provider.
SECTION 16. INDEMNITY
To the fullest extent permitted by law, the Parties shall defend, indemnify, and hold harmless each other and their respective officers, elected officials, employees, agents, and volunteers (collectively “Indemnitees”) from and against any and all claims, loss, cost, damage, injury , expense and liability of every kind, nature and description (including, without limitation, fines, penalties, incidental and consequential damages, reasonable court costs and attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith, and costs of investigation), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by the Parties.
Neither termination of this Agreement nor completion of the services shall release the Parties from their obligations under thi s Agreement, as long as the event giving rise to the claim, loss, cost, damage, injury, expense or liability occurred prior to the effective date of any such termination or completion.
SECTION 17. TERMINATION
(a) City Termination. City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Service Provider. In the event such notice is given, Service Provider shall cease immediately all work in progress.
(b) Suspension. City may temporarily suspend this Agreement, at no additional cost to City, provided that Service Provider is given written notice of temporary suspension. If City gives such notice of temporary suspension, Service Provider shall immediately suspend its activities under this Agreement. A temporary suspension may be issued concurrent with the notice of termination provided for in this Section.
7 (c) Service Provider Termination. Service Provider may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(d) Performance of Material Obligations. If either Service Provider or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Service Provider, or City may terminate this Agreement immediately upon written notice.
(e) Final Invoice. Upon termination of this Agreement by either Service Provider or City, all property belonging exclusively to City which is in Service Provider’s possession shall be returned to City. Design Professional shall furnish to C ity a final invoice for work performed by Service Provider, as set forth in Section 5 of this Agreement. This final invoice shall be reviewed and paid in the same ma nner as set forth in Section 5 of this Agreement.
SECTION 18. EFFECT OF TERMINATION
(a) Records and Execu tory Contracts. Upon termination of this Agreement, for any reason, all of the records in the Service Provider’s possession pertaining to the operation of the Amphitheater, together with the supplies, equipment, or other property of the City in Service Provider’s possession shall be delivered to the City. (b) Booking Contracts . Upon termination of this Agreement, all duties and obligations of Service Provider with respect to negotiation and booking of an Event shall cease. In no event shall City have the rig ht to reduce or deduct any of the fees due to Service Provider under the terms and conditions of this Agreement.
SECTION 19. ASSIGNMENT
Service Provider shall not assign, delegate, or transfer any interest in this Agreement nor the performance of any Service Provider's obligations hereunder, without the prior written consent of the City.
8 SECTION 20. NOTICES
All notices and other communications required or permitted to be given hereunder shall be in writing and shall be sent by: (a) certified or registered mail, postage pr epaid, return receipt requested, (b) personal delivery, or (c) a recognized overnight carrier that provides proof of delivery, and shall be addressed as follows:
If to City: If to Service Provider:
City of Cathedral City
Attn: City Manager
68700 Avenida Lalo Guerrero
Cathedral City, California 92234
Locations Unlimited LLC
Attn: Thies Lemke
41106 Yucca Lane
Bermuda Dunes, California 92203
Locations 760
Attn: Richard “Kip” Serafin
1775 E. Palm Canyon Drive,
Suite 110-250
Palm Springs, California 92264
Notices shall be deemed effective upon receipt or rejection only.
SECTION 21. LAW TO GOVERN; VENUE
This Agreement shall be governed by the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall take place in the Superior Court of the State of California for the County of Riverside, or if in federal court the United States District Court for the Central District of California, Eastern Division.
SECTION 22. AMENDMENT
Any amendment to this Agreement will be effective only if it is in writing signed by all Parties to this Agreement.
9 SECTION 23. OWNERSHIP OF DOCUMENTS
All plans, studies , documents and other writings, including working notes and internal documents, prepared by and for Service Provider , its officers, employees and agents and sub- Service Providers in the course of implementing this Agreement, shall become the property of Ci ty upon payment to Service Provider , and City shall have the sole right to use such materials in its discretion without further compensation to Service Provider or to any other Party. Service Provider shall, at Service Provider ’s expense, provide such reports, plans, studies, documents and other writings to City upon written request. All documents prepared by Service Provider are confidential and shall be maintained to preserve their confidential nature. Release of any such documents to third parties shall only be made upon written consent of City.
SECTION 24. WAIVER
Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement.
SECTION 25. SEVERABILITY
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 26. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with respect to the matters set forth herein. Any amendments, modifications, or changes to this Agreement shall be in writing and signed by both Parties. [Signatures on Following Page]
10 CITY OF CATHEDRAL CITY:
By: _______________________________
Charles P. McClendon
City Manager
LOCATIONS UNLIMITED INC.
By:
Its:
By:
Its:
LOCATIONS 760
By:
Its:
Approved as to form:
BURKE, WILLIAMS & SORENSEN, LLP
By: ___
Eric S. Vail
City Attorney
11 EXHIBIT “A”
DEPICTION OF PROPERTY
Cathedral City Community Amphitheater
68-526 Avenida Lalo Guerrero, Cathedral City, CA 92234
Located on the Northeast corner of Cathedral Canyon Drive and Avenida Lalo Guerrero
12 EXHIBIT “B”
SCOPE OF SERVICES
Development of Booking and Marketing Systems:
1) Develop and establish a professional booking and marketing system designed to provide for the on-going administration of the Amphitheater.
Amphitheater Management and Consultation:
1) Represent the City of Cathedral City with regard to the use of the Amphitheater by third parties for the production of public and private events.
2) Assist in the management, upon consultation with the City Liaison, of the master calendar of Events for Amphitheater including, but not limited to, performance, rehearsal, technical and production needs for all Events.
3) Confirm whether the Amphitheater C lients would like operation of Concession Stand by Kickback Cinemas, LLC during an Event.
Marketing and Business Development:
1) Business development and marketing for t he Amphitheater operation including the development of technical specification brochures, sales materials, website, on- line marketing strategies, social media and other required collateral materials.
Coordination, Planning and Communication with City:
1) Recommend operating budgets, programming models, rental rates, operating policies, business strategies and changes to the Business Plan, where necessary, to the City. Final approval shall be provided by the City Council.
2) Coordinate all reporting requi rements for the City Council and the City Manager through the City Liaison.
3) Meet regularly with the City Liaison.
13 EXHIBIT “C”
CITY MARKS
14 EXHIBIT “D”
PEPSI BEVERAGE AGREEMENT
15 EXHIBIT “E”
CONCESSIONAIRE AGREEMENT