amendment to this Agreement, specifying such changes and any other amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, the City shall provide written notice to Contractor and this Agreement shall automatically terminate without penalty to the City no less than ninety (90) days from Contractor’s receipt of such notice.
3. SCHEDULE OF PERFORMANCE
3.1 Term. Unless earlier terminated in accordance with Section 3.2 of this Agreement, this Agreement shall continue in full force and effect for a period of five (5) years, commencing on the Effective Date, and ending on June 30, 2031. The City, in its sole discretion, may extend the term of this Agreement for an additional five (5) years, commencing July 1, 2031 and ending June 30, 2036, by providing written notice to Contractor of such extension no later than March 31, 2031.
3.2 Termination Prior to Expiration of Term. Either party may terminate this Agreement if the other party to this Agreement is in default under this Agreement. A party shall be in default if: (a) such party fails to pay any sum payable under this Agreement within 45 calendar days after the same is due and payable and written notice specifying the late payment is provided; or (b) such party fails in any material respect to perform or comply with any of the other terms, covenants, agreements, or conditions of this Agreement and such failure continues for more than 30 calendar days after written notice from the other party (“Event of Default”). In the event that such a default (other than a default in the payment of money) is not reasonably susceptible to being cured within the 30 day period, the defaulting party shall not be considered in default if it shall within such 30 day period have commenced with due diligence to cure such default and thereafter completed with due diligence the curing of such default. In the event of an Event of Default, the non-defaulting party may, in its sole discretion, extend the time for the other party to perform the applicable obligation(s) hereunder for a period of time acceptable to such Party beyond the cure period set forth in this Section terminate this Agreement by giving written notice (as required under this Section of such termination to the other party.
3.3 Schedule of Performance. Contractor shall commence the Services under this Agreement upon the Effective Date and shall perform all Services within the time period(s) established in this Agreement.
3.4 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s
A – Page 143 of 252
55575.38285\45131199.1
55575.38285\45119068.1
performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified.
The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4. COORDINATION OF WORK
4.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement:
Contractor’s Food Services General Manager at the Project. However, such individual is not authorized to bind Contractor to any amendment of this Agreement. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services performed hereunder. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, education, capability, and reputation of Contractor, its principals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, except as set forth below, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the Work will be considered employees of Contractor or its subcontractor, as applicable. City will deal directly with and will make all payments to Contractor. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned,
A – Page 144 of 252
55575.38285\45131199.1
55575.38285\45119068.1
conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Contractor or any surety of Contractor from any liability under this Agreement without the express written consent of City.
4.4 Independent Contractor. The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make Contractor a City employee.
A. During the performance of this Agreement, Contractor and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of its officers, employees, or agents, except as set forth in this Agreement. Contractor, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City’s offices, but City shall provide to Contractor office space at the Project to enable Contractor to fulfill its obligations hereunder. City shall have no voice in the selection, discharge, supervision, or control of Contractor’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service.
Contractor shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers’ compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Contractor in its business or otherwise a joint venturer or a member of any joint enterprise with Contractor.
B. Contractor shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City.
C. No City benefits shall be available to Contractor, its officers, employees, or agents in connection with any performance under this Agreement. Except for contract fees paid to Contractor as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Contractor for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Contractor, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligations, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Contractor’s officers, employees, servants, representatives, subcontractors, or agents, Contractor shall indemnify City for all such financial obligations.
4.5 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and
A – Page 145 of 252
55575.38285\45131199.1
55575.38285\45119068.1
agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
5. INSURANCE
5.1 Types of Insurance. Contractor shall procure and maintain, as a Direct Operating Cost, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Contractor's performance of Work under this Agreement, including Contractor's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies may be reasonably changed accordingly upon receipt of written notice from the City Manager or his designee. Contractor shall substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for contract liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:
A. Errors and Omissions Insurance. Contractor shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form contract liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per claim and two-million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section.
Required
X is not required;
(1) Contractor shall either: (a) certify in writing to the City that Contractor is unaware of any contract liability claims made against Contractor and is unaware of any facts which may lead to such a claim against Contractor; or (b) if Contractor does not provide the certification under (a), Contractor shall procure from the contract liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement.
A – Page 146 of 252
55575.38285\45131199.1
55575.38285\45119068.1
(2) If the policy of insurance is written on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Contractor shall obtain continuing insurance coverage for the prior acts or omissions of Contractor during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager.
(3) In the event the policy of insurance is written on an “occurrence” basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement.
B. Workers’ Compensation Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers’ compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Contractor agrees to waive and obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers’ compensation insurance policies. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
C. Commercial General Liability Insurance. Subject to the following paragraph, Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least four million dollars ($4,000,000.00) and twofive million dollars ($5,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations.
(1) Should the above limits not be met, Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. In addition, Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy for excess (umbrella) coverage of the difference to the aggregate limit as defined in 5.1 Cas five million dollars ($5,000,000) general aggregate.
D. Business Automobile Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars.
A – Page 147 of 252
55575.38285\45131199.1
55575.38285\45119068.1
E. Employer Liability Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease.
F. Liquor Liability Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of liquor liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000) and two million dollars ($2,000,000) general aggregate.
5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Contractor guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self- insured retentions in excess of $100,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Contractor’s ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $100,000.
5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Contractor under this Agreement:
A. For any claims related to this Agreement, Contractor’s coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it.
B. Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers.
C. All insurance coverage and limits provided by Contractor and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage.
D. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing.
E. Contractor agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Contractor’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement.
F. Contractor agrees to ensure that subcontractors, and any other parties
A – Page 148 of 252
55575.38285\45131199.1
55575.38285\45119068.1
involved with the Project who are brought onto or involved in the Project by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the Project will be submitted to the City for review.
G. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard.
H. Contractor shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage.
I. Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive.
J. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section.
K. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor arising out of the Work performed under this Agreement and for any other claim or loss which are likely to reduce the minimum required insurance limits available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to significantly reduce or dilute insurance available for payment of potential claims.
L. Contractor agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages resulting from the Contractor’s activities or the activities of any person or person for which the Contractor is otherwise responsible.
5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances.
5.5 Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a
A – Page 149 of 252
55575.38285\45131199.1
55575.38285\45119068.1
person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. " This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. " Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policiescertificates. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
6. INDEMNIFICATION
6.1 Indemnification and Reimbursement. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any negligent acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance
A – Page 150 of 252
55575.38285\45131199.1
55575.38285\45119068.1
requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7. REPORTS AND RECORDS
7.1 Accounting Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement.
Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
7.2 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement. Contractor acknowledges that the City is greatly concerned about the cost of the Work to be performed under this Agreement. For this reason, Contractor agrees that Contractor shall promptly notify the Contract Officer the estimated increased or decreased cost if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services. If Contractor is providing design services, Contractor shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services.
7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all resulting damages. Contractor may retain copies of such documents for their own use.
Contractor shall have an unrestricted right to use the concepts embodied in this Agreement.
Contractor shall ensure that all its subcontractors shall provide for assignment to City of any documents or materials prepared by them. In the event Contractor fails to secure such assignment, Contractor shall indemnify City for all resulting damages.
7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
All information gained by Contractor in the performance of this Agreement shall be considered confidential and shall not be released by Contractor without City’s prior written authorization.
7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary
A – Page 151 of 252
55575.38285\45131199.1
55575.38285\45119068.1
to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
8.3 Default of Contractor. Contractor’s failure to comply with any provision of this Agreement shall constitute a default.
A. If the City Manager, or his designee, determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Contractor in writing of such default and the terms of Section 3.2 above shall apply. If the City terminates this Agreement in accordance with Section 3.2 above, such termination shall be without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Contractor shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City’s right to terminate this Agreement without cause under Section 3.2.
B. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3(A) and Section 3.2, take over the work and prosecute the same to completion by contract or otherwise.
The Contractor shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages). The City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Contractor shall not limit Contractor’s liability for completion of the Services as provided in this Agreement.
8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition,
A – Page 152 of 252
55575.38285\45131199.1
55575.38285\45119068.1
or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions.
8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance
A – Page 153 of 252
55575.38285\45131199.1
55575.38285\45119068.1
with the provisions of Palm Springs Municipal Code Section 7.05.02, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
10. MISCELLANEOUS PROVISIONS
10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Contractor against patent or copyright infringement, statutory or otherwise:
A. It is agreed that Contractor shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Contractor shall pay all costs and damages finally awarded in any such suit or claim, provided that Contractor is promptly notified in writing of the suit or claim and given authority, information and assistance at Contractor’s expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Contractor. However, Contractor will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City’s alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Contractor when it is such use in combination which infringes upon an existing U.S. letters patent or copyright.
B. Contractor shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Contractor’s expense. Contractor shall not be obligated to indemnify City under any settlement that is made without Contractor’s consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Contractor, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto.
10.2 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing.
All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows:
To City: City of Palm Springs
Attention: City Manager & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
A – Page 154 of 252
55575.38285\45131199.1
55575.38285\45119068.1
To Contractor: Ovations Fanfare, L.P. d/b/a OVG Hospitality 5050 S. Syracuse St., 8 th Floor
Denver, CO 80237
Attention: President
With a copy to: OVG Hospitality Legal Department at the same address
10.3 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
10.4 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
10.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound.
10.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
10.10 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive
A – Page 155 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.
[SIGNATURES ON NEXT PAGE]
A – Page 156 of 252
55575.38285\45131199.1
55575.38285\45119068.1
SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND OVATIONS FANFARE, L.P. dba OVG HOSPITALITY
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________
Signature
Date: ___________________________
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _________________ Item No. ________ Agreement No. _________
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________ City Attorney City Clerk
APPROVED:
By: _____________________________ Date: ____________________________ City Manager – up to $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
A – Page 157 of 252
55575.38285\45131199.1
55575.38285\45119068.1
EXHIBIT “A”
SCOPE OF SERVICES
ARTICLE 1 DEFINITIONS
1.1 Accounting Period shall refer to each calendar month of a year. The first Accounting Period shall begin on July 1st, and the last accounting period shall end on June 30th so that the sum of all of the accounting periods in an Agreement year matches the Accounting Year.
1.2 Accounting Year means the fiscal accounting year of the City, which begins on July 1 and ends the following June 30. The initial Accounting Year shall begin on July 1, 2026, and end on June 30, 2027.
1.3 Adjusted Net Receipts means the Net Receipts less the contribution to the Convention Center Replacement Reserve Fund.
1.4 Agreement means this Agreement and all exhibits attached hereto, together with the RFP and Contractor’s Proposal, subject in all respects to the order of precedence set forth in the Agreement and its respective subsections.
1.5 Alcoholic Beverages means beer, wine, spirits, and other beverages treated as alcoholic beverages under California law.
1.6 Buy-out Fee is a required fee payable by the User to the Contractor to use an Outside Caterer at the Center for such event, to the extent a User or the City is permitted to obtain such engagement in accordance with the terms of this Agreement. The Buy-out Fee may also be utilized for Sample Items, at the Facilities General Manager’s discretion.
1.7 Catering and Concession Services means the exclusive sale and provision of food and beverage services and the other privileges granted to and duties imposed upon Contractor by this Agreement for City for the Convention Center, except for items found in Exhibit D, Buy Out.
1.8 Catering and Concession Account means the bank account described in Article 12.3.
1.9 Catering Events are those where Contractor’s fees are billed to a single User, rather than to consumers at large patronizing Concession Services.
Catering Events vary in size and include, but are not limited to marketing the services, food and beverage service to banquets, meetings, and backstage service.
1.10 Catering Sales means any pre-arranged food or beverage function of multiple Users, where payment for the entire event rests with an individual or company. Catering Sales include planning of menus; purchasing,
A – Page 158 of 252
55575.38285\45131199.1
55575.38285\45119068.1
preparation, set-up and service of all food, beverages, linens, plates and flatware; provision and management of all food servers and bartenders; and food event clean-up and trash removal. Contractor shall have the exclusive right and obligation to provide catering for all events that are not specifically exempted under this Agreement.
1.11 Center means collectively the Palm Springs Convention Center (PSCC) and associated parking, and surrounding outdoor spaces. May also be referenced as “Facilities” or “PSCC”.
1.12 City means the City of Palm Springs, California.
1.13 City Commission shall be 7.5 percent of annual Gross Receipts in accordance with Exhibit B, Schedule of Compensation
1.14 Concession Sales means all sales of food and beverages sold from permanent or portable food and beverage stands, carts, and kiosks to individual customers except from those concessions specifically exempted under this Agreement.
1.15 Concession Services are those in which consumers are charged separately for items of food and beverages. Contractor shall have the exclusive right and obligation to provide standard concession services for all Center events for which food or beverage concessions are required.
1.16 Construction Phase(s) means the modernization and enhancement of PSCC. Construction is projected to begin spring 2026 and will include three phases:
1.16.1 Phase 1 is defined as beginning on the Effective Date up until the start of Phase 2 (projected 07/01/26 - 06/30/27). Contractor shall continue to provide Catering and Concession Services at the Center during Phase 1, coordinate with the City and advise the Facilities General Manager or designee on industry
standards as it relates to the design of the Contractor’s Designated Areas.
1.16.2 Phase 2 is defined as beginning with the partial closure of PSCC up until the start of Phase 3 (projected 07/01/27 – 01/01/28).
Contractor shall provide Catering and Concession Services and other Facilities (as needed) during Phase 2.
1.16.3 Phase 3 is defined as beginning with the full re-opening of PSCC up until expiration of this Agreement (projected 07/01/27 - 06/30/31). Re-opening date shall be contingent on the
construction schedule and City’s ability to commence occupation of PSCC. Contractor shall resume Catering and Concession
A – Page 159 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Services at the Center and other related services as PSCC becomes fully operational during Phase 3.
Dates of each phase stated above are estimates only. During the Term of this Agreement, both parties will meet and mutually agree on the start and end of each Phase. The agreed-upon dates will set the duration of each Phase.
1.17 Contract Year refers to the period between July 1, 2026, and June 30, 2027, and every July 1 through June 30th for every year thereafter until the Agreement terminates.
1.18 Contractor Commission shall be 7.5 percent of annual Gross Receipts in accordance with Exhibit B, Schedule of Compensation.
1.19 Convention Center Replacement Reserve Fund means the separate funds established in the Operational Budget for the expenditures described in Article 14.
1.20 Direct Operating Costs means all costs of goods sold (labor and food) and expenses incurred by Contractor in the operation of the Catering and Concession Services including those items as described in Article 13.3 of the attached Exhibit “A”.
1.21 Facilities General Manager means the General Manager of the Facility, or his or her designee, as retained by City in Contract Services Agreement 25P206 – Convention Center and Tourism Management Services.
1.22 Effective Date means July 1, 2026.
1.23 Equipment refers to all foodservice furniture and machinery, except Smallwares, used for the receiving, storing, transportation, preparation, merchandising, selling and accounting of product. Equipment shall not be affixed to the building except by utility (electrical, water, or gas) connections.
1.24 Essential Management Positions means the Contractor’s employees as defined in Article 11.
1.25 Executive Personnel means Contractor executive employees from Contractor’s corporate office that are not part of the Essential Management Positions as noted in Article 11, and whose sole purpose will be to transition responsibilities to Contractor’s newly appointed General Manager.
1.26 Financial Statements means balance sheet, income statement, and statement of cash flows prepared in accordance with Generally Accepted Accounting Principles (GAAP) of the United States of America and any other financial reports or statements reasonably deemed necessary by the Facilities General Manager in a format reasonably acceptable to the
A – Page 160 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Facilities General Manager pertaining in each instance to the Catering and Concession Services or a portion thereof.
1.27 Furnishings includes but not limited to tables, chairs and other furnishings, portable bars, stands and concession areas used by Contractor.
1.28 General Manager or “FSGM” means the individual retained by Contractor to oversee the performance of Contractor’s obligations under this Agreement and to manage the day-to-day Catering and Concession Services at the Center. The General Manager shall be located at the Palm Springs Convention Center and, except in instances in which the Facilities General Manager provides prior written approval, shall be assigned exclusively to Contractor’s obligations under this Agreement. The General Manager also serves as the FSGM.
1.29 Gross Expenses means the sum of (a) all Direct Operating Costs and other allowable expenses of Contractor, and (b) the contribution required under this Agreement to the Convention Center Replacement Reserve Fund and Smallware Reserve Fund, (c) City Commission, and (d) Contractor Commission, items (a), (b), (c), and (d) collectively hereinafter the “Gross Expenses”.
1.30 Gross Receipts means the total revenue (cash or credit) including interest earned from the deposits in the Catering and Concession Account and any administrative fee, which is not intended to be a tip or gratuity for the benefit of service employees, charged by the Contractor, at the Center from the operation of the Catering and Concession Services, whether collected or uncollected, accruing from or realized by the Contractor less (a) sales taxes, or similar tax, the amount of which is determined by the amount of sales made, and which is directly payable to the taxing authority by Contractor, (b) service or discount charges on credit card salesfees, (c) tips and gratuities which are disbursed to employees, (d) service charges on catering sales, and (de) such other exclusions (including mutually agreed discounted sales) which may be agreed to in writing by Contractor and the Facilities General Manager.
1.31 Marketing and Promotional Products and Services means products/items, services, custom printed material, or sales collateral that are branded with the Palm Springs Convention Center Catering Logo and used for the marketing and promotion of the Center or Catering and Concession Services at Center and as further described in Article 14.6.
1.32 Marketing Research, Development, and Design means developing and testing new catering concepts, innovative changes, or updates to existing catering concepts. Unless otherwise authorized by the Facilities General Manager in writing, once a standard offering, these concepts will become a Direct Operating Cost.
A – Page 161 of 252
55575.38285\45131199.1
55575.38285\45119068.1
1.33 Master Billing means a billing process where the Contractor bills the Users for the combined costs of the Facilities, and the Catering and Concession Services.
1.34 Net Profit means for each Accounting Period, the amount of Adjusted Net Receipts less (a) City Commission, and (b) Contractor Commission.
1.35 Net Receipts means Gross Receipts less Direct Operating Costs.
1.36 Net Losses means for any Accounting Period, the amount by which the sum of Gross Expenses exceeds Gross Receipts.
1.37 Non-Allowable Expense is defined herein at Article 13.4.
1.38 Novelty Services means catering-related services provided by the Contractor that are not considered part of Contractor’s Catering and Concession Services. Novelty Services may include, but not be limited to, fulfilling a User’s unique or one-of-a-kind catering-related request.
1.39 Offer means Contractor’s proposal, dated April 21, 2026.
1.40 Operational Change(s) refers to modifications in the City’s or Facilities’ internal processes, including but not limited to, administrative procedures/practices, policies, and organizational changes. The City and Facility reserve the right to make these Operational Changes with or without prior consultation with the Contractor to the extent allowable by this Agreement.
1.41 Operating Memorandum refers to any written memorandum executed by the Parties to further define responsibilities and obligations of the Parties to the extent that is authorized herein.
1.42 Outside Caterer means a business entity (other than Contractor) engaged by a User or the City to provide food and non-alcoholic beverages for a function or event at the Center to the extent a User or the City is permitted to obtain such engagement in accordance with the terms of this Agreement.
1.43 Sample Item No User of the Facility shall provide free samples of food, non- alcoholic beverage or merchandise products where such samples are any larger than a "sample" size, provided that such distribution has been authorized by the Food Service General Manager.
1.44 Planned User Services means those services provided by Contractor that provide and deliver professional, high-quality assistance to the User before, during, and after a Catering Event. Planned User Services may include, but not be limited to, User welcome/appreciation gifts/baskets or providing the User with complementary product(s)/service(s) or upgraded/enhanced product(s)/service(s) for the event, any on-site User sponsored food and
A – Page 162 of 252
55575.38285\45131199.1
55575.38285\45119068.1
beverage, or travel for site visits to an upcoming event scheduled at the Center to enhance customer experience.
1.45 PSCC means the Palm Springs Convention Center (PSCC) owned by the City
1.46 Smallwares means and include, without limitation, linens, removable serving equipment, including dishware, china, glassware, flatware, serving bowls, bar utensils, pots, pans, chafing dishes, kitchen tools of the trade, tabletop appliances, table skirting, and other movable storage items.
1.46 Start-up/Transition Costs means all reasonable out-of-pocket expenses incurred by Contractor in preparing to commence operations at the Center which will include, as set forth in the Transition Cost Budget, without limitation and shall not exceed Two Hundred Fifty Thousand Dollars [$250,000.00], the following:
(1) Travel expenses for Contractor employees, in accordance with Contractor’s travel policy;
(2) Staffing-related expenses incurred in connection with hiring, onboarding, and training personnel in advance of the first day of service;
(3) Opening-related costs, including temporary salaries and travel reimbursements for Contractor employees engaged in transition or opening activities;
(4) Costs associated with obtaining all required licenses and permits, including liquor licenses or other regulatory authorizations necessary for Contractor’s provision of food and beverage services; (5) Technology and systems installation expenses, including POS systems, inventory management tools, and other operational technology required for service;
(6) Uniform procurement costs;
(7) Temporary office costs, including furniture, office supplies and other equipment procured, or rental costs incurred, during any transition period;
(8) Center and brand signage required for the food and beverage operation;
(9) Initial food, beverage, and smallwares inventory necessary to launch operations; and
(10) Costs associated with initial health, safety, and regulatory inspections required prior to the Effective Date.
Transition Period Expenses. Contractor will pay the Start-up/Transition Costs from the Capital Investment to cover the cost of its actual out-of-
A – Page 163 of 252
55575.38285\45131199.1
55575.38285\45119068.1
pocket expenses incurred during the Transition Period to effect the transition of management from Prior Operator to Contractor during such period based on budget submitted. Within thirty (30) days following the end of each month during the Transition Period, Contractor will submit to the City a report showing the actual out-of-pocket expenses incurred during such immediately preceding month to effect such transition of management.
Any amounts incurred in excess of such amount and approved in writing by the City Manager will be reimbursed to Contractor.
1.47 Subcontracts and Subcontractors means any person or any entity, other than Outside Caterers, who contracts with Contractor to provide goods or services to Users at the Center. Use of Subcontracts or Subcontractors shall be in accordance with the City’ Local Business Program (Program).
1.48 Supplier means any person or entity engaged, directly or indirectly, in the business of making a product or service available to Contractor.
1.49 Temporary Kitchen(s) means temporary kitchens used by the Contractor during Construction of the PSCC. This may include mobile, krafted, ghost or other kitchens utilized by the Contractor that is sourced through a third party, or not affixed to the Facilities.
1.50 User means any person or entity renting space in the Center for meetings, events, exhibitions, conventions, trade shows, or for other uses authorized by the City, may also be referred to as “client”.
ARTICLE 2. TERM OF AGREEMENT
2.1 The Term of this Agreement shall be as set forth in Section 3.1 of the Agreement.
2.2 In the event of termination or expiration of the Agreement for any reason, and provided the City is not at such time in breach or default of the Agreement, at City’s written request, Contractor shall continue to provide Catering and Concession Services, and City shall continue to pay Contractor for such services as set forth in the Agreement, in order to allow City to transition to a new contractor. In furtherance of the foregoing, each Party agrees to hold over under the terms and conditions of the Agreement that existed immediately prior to the expiration or termination (including payment of the Management Fee) for a period of time that is mutually agreed to in writing by the parties but not to exceed the time allowed under the IRS tax rules.
ARTICLE 3. CONTRACT ADMINISTRATION
3.1 Designation of Key Personnel. The Contractor’s Contract Manager for this engagement shall be the Food Service General Manager (the “FSGM”). The Contractor shall endeavor to keep the same FSGM assigned to this
A – Page 164 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Agreement throughout its Term so long as Contractor deems that person’s performance to be satisfactory, provided that the foregoing shall not be construed as a prohibition against Contractor replacing any FSGM.
3.2 Contract Administration. The FSGM shall communicate all Catering and Concession Services matters to the Facilities General Manager.
3.2.1 All matters requiring approval by the Facilities General Manager must be approved in writing.
3.2.2 Within thirty (30) calendar days of the Effective Date of this Agreement, the City and the Contractor shall meet to discuss and determine a mutually defined list of deliverables for use in ensuring that Contractor meets all of its obligations and deliverables pursuant to this Agreement.
3.2.3 The FSGM and/or other designated personnel shall meet regularly with the Facility General Manager and other designated City personnel, as necessary, to discuss matters relating to the performance of the services and this Agreement.
3.2.4 In the event that the Contractor replaces the FSGM, the replacement will be an individual having equivalent experience and competence in executing services described herein. The Contractor will promptly notify the Facility Contract Manager.
Such replacement shall be subject to the approval of the Facilities General Manager as set forth in Article 11. The Facilities General Manager and the FSGM may be changed at the option of the City by written notice to Contractor without a formal amendment to this Agreement.
ARTICLE 4.SERVICES
4.1 Services.
4.1.1 The Contractor shall provide Catering and Concession Services and Novelty Services, and all other food and beverage services required by this Agreement for City. Such services shall be provided on an exclusive basis, so that no other party shall have the right to provide such services at the Convention Center without the prior written consent of Contractor, except for items outlined in Exhibit D Buy Out.
4.1.2 The Contractor shall provide the highest quality service to the City and its Users, on a consistent basis, and shall continuously strive to be flexible in order to meet and exceed the expectations of the City and its Users.
A – Page 165 of 252
55575.38285\45131199.1
55575.38285\45119068.1
4.1.3 Except as stated to the contrary herein, Contractor also agrees to perform the following duties (the costs and expenses of which incurred by Contractor shall all be considered Direct Operating Costs as specified in Article 13.3 and throughout the
Agreement):
4.1.3.1 Comply with all policies and procedures for the Catering and Concession Services at the Center to the
extent Contractor is provided reasonable prior written
notice of the same.
4.1.3.2 Provide for the retail sale of food, beverages, candy and similar products at all appropriate Catering and
Concession Services in the Center.
4.1.3.3 Maintain the vending machines in the Center for use by Users of the Center. All vending machines shall be
equipped with EnergyStar certified or equipped with an
appropriate internal or external energy miser product.
The style, location and level of maintenance of the
machines must be approved, in writing, in advance by
the Facilities General Manager. Any vending
machines located in the Center for the exclusive use of City employees are not within the scope of this
Agreement.
4.1.3.4 Order, purchase, receive delivery of, and store all consumable supplies and products necessary for
performing Catering and Concession Services.
4.1.3.5 Acquire, prepare or cause to be prepared all
concession products for sale or distribution.
4.1.3.6 Advise and make recommendations to the Facilities General Manager pertaining to the operational aspects
of the Catering and Concession Services, including but
not limited to the choosing of type, quality, brand, and price of products; the use of portable concession
stands; the sale of products; and the preparation of the catering menu.
4.1.3.7 Comply with all applicable laws and regulations governing the handling, sale and disposal of Catering
and Concession products, including but not limited to
the procurement and uninterrupted maintenance of all
necessary permits, licenses, and insurance required by
government agencies having jurisdiction over
A – Page 166 of 252
55575.38285\45131199.1
55575.38285\45119068.1
operations of the Center; failure to maintain any
required permit, license, or insurance shall be deemed
a material breach of this Agreement.
4.1.3.8 Comply with requests from the City or Facilities General Manager for additional information, reports,
data, changes to existing reports (in format, content,
frequency etc.), consistent with the terms of this
Agreement and any Operating Memorandum executed
between the Parties. Such changes may be deemed
Operational Changes.
4.1.3.9 Arrange for, or submit work order requests, for any required repairs or maintenance to the Catering and
Concession Service equipment and locations and
comply with all warranty and service requirements
related thereto.
4.1.3.10 Monitor, report to the Facilities General Manager and, upon written approval of the Facilities General
Manager, arrange and pay for replacement or
modification of the Catering and Concession
equipment and Facilities. The cost of any such
replacements or modifications shall be agreed upon in
writing between the Parties.
4.1.3.11 Provide input during pre-development and throughout the Palm Springs Convention Center Modernization
Project as it relates to the food and beverage services.
4.1.4 Special Services. In addition to the specified food and beverage services, the Contractor shall provide specialized services associated with certain Catering and Concession Services.
These specialized services shall include, but not be limited to, the services described in the following:
4.1.4.1 Meeting Room Services. The Contractor shall distribute various snack-type and catered meals including but not
limited to the following services. The Contractor shall provide constant and frequent attention to ensure food and beverage items are kept fresh and in adequate supply.
4.1.4.1.1 Plated and buffet style meals, coffee/snack
service at stations (normally sold in quantity
amounts, i.e. per gallon, per each, per
dozen, etc.).
A – Page 167 of 252
55575.38285\45131199.1
55575.38285\45119068.1
4.1.4.1.2 Mobile Services. The Contractor shall have
the ability to provide Catering and
Concession Services at the Center for
areas not easily accessible from the
Center’s kitchen.
4.1.4.1.3 Personnel Service. The Contractor
occasionally shall provide personnel for
special purposes or other activities to
promote the City, local tourism industry,
and/or food and beverage operation to
potential users, and to carry out other
functions consistent with the City’s mission
in the community and convention industry in
addition to the normal personnel provided
by the Contractor.
4.1.5 Tastings. All Catering Services, such as, but not limited to, tastings or marketing presentations shall be billed at actual cost of the product, service, and direct labor, and shall not be included in Gross Receipts.
4.1.6 City, through its Facilities General Manager, reserves the right to require a Buy-Out-Fee from the User, in accordance with Exhibit “D” Buy-Out-Fee Schedule.
4.2 Food Quality, Menus, and Food Purchasing Specifications.
4.2.6 Food Quality and Menus. Contractor shall maintain the highest level of excellence in its menu and in the quality and freshness of its supplies and food preparation. Food quality and
creativeness shall be consistent for all foods provided through Catering and Concession services.
4.2.6.1 The Contractor shall ensure all foods, drinks,
beverages, confectionery, refreshments, and the like
sold or kept for sale, shall exceed best practices and
industry standards, be wholesome, and pure and shall
conform in all respects to the federal and municipal
food and other laws, ordinances, and regulations.
4.2.6.2 No imitation, adulterated, or misbranded article shall be sold or kept for sale, and all product(s) kept on hand
shall be stored and handled with due regard for
sanitation.
4.2.6.3 Contractor will keep informed of current trends in consumer food preferences and products and will have
A – Page 168 of 252
55575.38285\45131199.1
55575.38285\45119068.1
a formal written program for quality control and
improvement. Food quality and price must be at least
consistent with the quality and price offered by catering and concession service providers providing similar
services within California.
4.2.6.4 Contractor agrees to use local products and vendors whenever reasonable located in the Greater Coachella
Valley area that are unique to Palm Springs and will
provide a “sense of place” reflecting the City’s diversity and culture when operated at the PSCC, such as
restaurants, food trucks, or other products (“Local
Brands”). Local Brands may be operated by their local
management teams at the PSCC to maintain the full
authenticity of the concepts and brands. Local Brands
are very important to the City so that Local Brand
cuisines and experiences are featured in the PSCC
food and beverage program as subcontractors to the
Contractor.
4.2.6.5 Contractor shall provide a variety of high quality, creative and nutritious food.
4.2.6.6 The following parameters shall be observed by
Contractor regarding the menus developed for the
Center:
4.2.6.6.1 Develop innovative menus which
emphasize variety, nutrition, quality, and
use fresh foods and seasonal foods
whenever possible.
4.2.6.6.2 Utilize creative food displays and
merchandising techniques to ensure
customer satisfaction.
4.2.6.6.3 Provide healthful menu choices that include
and identify foods that are low in calories,
sodium, fats, sugar free, gluten free, nut free
and other information that would satisfy
special needs customers.
4.2.6.6.4 Be able to produce the menu using the
appropriate staffing plans with the
equipment available at the Center.
A – Page 169 of 252
55575.38285\45131199.1
55575.38285\45119068.1
4.2.7 Published Menus. Unless requested differently by the Facilities General Manager, the Contractor’s Published Menu shall be submitted to the Facilities General Manager within 14 calendar days of the Effective Date of this Agreement for review and approval. Thereafter, the Published Menus shall be submitted to the Facilities General Manager for review and approval no later than July 1 preceding the beginning of the next Accounting Year.
4.2.8 Food Purchasing Specifications and Standards. The Contractor shall provide foods that meets or exceed the minimums stated below. In the event the minimums below are silent for a particular food purchase, the industry food purchasing standard shall be utilized.
4.2.9 All foods provided shall comply with the USDA Grades and Standards and any subsequent revisions.
4.2.10 Contractor’s own purchasing specifications must equal or exceed these minimums:
4.2.10.1 All meats, meat products, poultry, poultry products, and fish must be USDA inspected.
4.2.10.2 Beef, lamb, and veal shall be USDA Choice.
4.2.10.3 Pork shall be U.S. No. “1”
4.2.10.4 Poultry shall be U.S. Grade “A”
4.2.10.5 Fresh fish and seafoods shall be top grade, frozen fish and seafoods shall be a nationally distributed brand, packed under Continuous inspection by the USDA.
4.2.10.6 Dairy products:
4.2.10.6.1 Eggs -fresh USDA or state graded “A Quality”
4.2.10.6.2 Butter -USDA U.S. Grade “A”
4.2.10.6.3 Cheese -USDA U.S. Grade “A” for all graded
Cheese
4.2.10.6.4 Milk and milk products -USDA Grade “A”
4.2.10.7 Fresh fruit and vegetables:
4.2.10.7.1 Fresh Fruit - USDA U.S. Fancy
4.2.10.7.2 Fresh Vegetables - USDA U.S. No. “1”
A – Page 170 of 252
55575.38285\45131199.1
55575.38285\45119068.1
4.2.10.8 Dry stored items and Canned goods -U.S. Fancy.
4.2.10.9 Frozen fruits and vegetables -USDA U.S. Grade “A” or U.S.
Fancy.
4.3 Prices, Samples and Merchandise.
4.3.6 Published Prices. Contractor shall post in a conspicuous place at each bar and Concession stand a Complete list of prices of all articles offered for sale. The Content and manner of posting of each list, including the style and size of the signs, shall be subject to the written approval of the Facilities General Manager, which approval shall not be unreasonably withheld.
4.3.1.1 Prior to implementing any price change, Contractor shall notify and obtain written approval from the
Facilities General Manager. This approval requirement
shall apply to all items offered to Users of the Center, whether provided through Concessions or vending
operations or the Catering menus.
4.3.1.2 Although requests for menu price Changes shall be made as part of the annual Sales and Marketing Plan,
City recognizes that national and global economic
events may have an impact on Contractor’s pricing.
Therefore, Contractor may submit requests for
Changes to menu prices in writing for approval by the
Facilities General Manager throughout the Fiscal Year.
The request shall include a brief description or reason for the Change, the price(s) to be Changed (listed by
line item or across the board), the proposed % or
proposed dollar amount Change, data used to
Calculate the Change, and impact to overall budget (if
any).
4.3.1.3 Notwithstanding the foregoing, the provisions of this Article 4.3.1, Published Prices shall not apply to the
prices to be charged by Contractor for alcoholic
beverages it may offer for sale at the Center. Prior to implementing any price change for any alcoholic
beverages, Contractor agrees to Consult with the
Facilities General Manager to obtain their input thereto.
Nonetheless, the determination of the prices to be
Charged for alcoholic beverages for sale at the Center
shall rest solely with Contractor.
4.3.2 Competitive Prices and Portions. Contractor shall ensure the City that its catering and concession prices and portions are
A – Page 171 of 252
55575.38285\45131199.1
55575.38285\45119068.1
competitive with similar facilities. The Facilities General Manager reserves the right to require the Contractor to increase or decrease prices and/or portion sizes.
4.3.2.1 Upon request, the Contractor shall conduct a pricing study utilizing a competitive set of local hotels (at least three), and like competitive convention centers around the country (at least three). The competitive set for the survey will be approved in writing in advance by the Facilities General Manager as part of the Sales and Marketing Plan.
4.3.3 Samples and Merchandise. No competing vendors or sales representatives of merchandise normally sold by Contractor will be allowed to operate within the confines of the Center at any time during the Term of this Agreement, except with the prior written consent of the Facilities General Manager. Nothing in this Agreement shall be construed to prohibit a User from engaging in Permitted Sampling (as defined herein) to the extent permitted by applicable law in connection with the exhibit or other type of event at the Center when such User is in the business of manufacturing or distributing such food and beverage items. As used herein, “Permitted Sampling” shall mean the distribution of food and/or non-alcoholic beverage promotional products in sample-sized portions (“Sample Items”), provided that:
4.3.3.1 Contractor is provided reasonable prior written notice of such distribution,
4.3.3.2 Such distribution is made at no charge to the public, and
4.3.3.3 The City, through its Facilities General Manager, shall ensure that their contract with the User(s) provides for the User to indemnify Contractor and the City for any damages arising from and/or in connection with the distribution of such Sample Items.
4.3.4 Sample Items. No User shall provide free samples of food, non- alcoholic beverage and merchandise products where such
samples are other than a "sample" size, provided that such distribution has been authorized by the Food Service General Manager. No sampling of alcoholic beverages shall be permitted unless approval in writing by Facilities General Manager and with compliance with ABC laws and regulations.
4.3.5 The City, through its Facilities General Manager, reserves the right to require a Buy-out Fee from the User, in accordance with Exhibit “D” Buy-out-Fee Schedule.
A – Page 172 of 252
55575.38285\45131199.1
55575.38285\45119068.1
4.4 Marketing, Advertising and Branding.
4.4.5 Contractor’s Obligation to Market Center. Contractor shall use its commercially reasonable efforts to market the Center and generate Gross Receipts for the benefit of the City consistent with the representations contained in Contractor’s Offer and this Agreement.
4.4.2 Logos. Contractors shall not display any identifying logos and/or graphics within the Center except (a) as may be on its employee identification badges or uniforms or (b) as may be utilized in connection with the concession stands, carts, kiosks or other portable concessions or (c) as may be affixed to equipment, Smallwares or other products identifying the manufacturer of the product used by Contractor or (d) as may be requested by a User of the Center. Signs and other graphic materials that are used by Contractor must have prior written approval by the Facilities General Manager.
4.4.2.1 Contractor shall not place signage printed with commercial brand name identification at the Center or
use such signage when providing Catering and
Concession Services to Users of the Center.
4.4.2.2 The City or Facilities General Manager will provide the Contractor with logo, brand and style guide for use with all marketing, communications and identification
purposes to be displayed electronically, on any
physical signage, uniforms, and letterhead, etc.
4.4.2.3 City’s Logo. Contractor shall not in any manner use City’s logo, or the Catering and Concession Services,
or the Center for advertising, publicity, marketing, or public relations purposes without the Facilities General Manager’s prior written approval.
4.4.3 Marketing. The Contractor is responsible for the development and execution of an acceptable sales and marketing program for the Catering and Concessions Services at the Center. All advertising and promotional material requires prior written approval of the Facilities General Manager before it is printed, published, or broadcasted. The Contractor shall not use its corporate name or logo on any Center sales brochures, menus or uniforms,
business cards, letterhead or other materials.
A – Page 173 of 252
55575.38285\45131199.1
55575.38285\45119068.1
4.4.3.1 The Contractor shall participate in photoshoots of events in which catering services are a required
component (galas, banquets, etc.) for marketing and
promotional purposes.
4.4.3.2 The Contractor shall be required to secure its
employees’ advance written approval to be filmed in
any and all promotional photo and/or video shoots as
deemed necessary by the Facilities General Manager
for such marketing and promotional purposes.
Contractor shall ensure that any employees who do not
provide advance written approval to be filmed are not
captured in promotional photo and/or video shoots.
4.4.3.3 The City will share City’s photography or videography with Contractor for marketing purposes, as approved
by the Facilities General Manager.
4.4.4 Center’s Website. The Contractor’s marketing program shall include cooperation with the Center in the development, operation and maintenance of the Center’s website relating to Catering and Concession Services. Participation in the Center’s website includes, but is not limited to the following:
4.4.4.3 Providing annually updated catering and concession menus for publication.
4.4.4.4 Coordinating with the City and Facilities General Manager for periodic photoshoots of client banquet,
luncheon, and bar services of selected events to be
published on websites.
4.4.4.5 Providing quarterly updated statistics on community partnerships with local food purveyors, food donation
services and sustainability efforts.
4.4.4.6 Providing access to the General Manager and
Facilities General Manager of Sales for periodic
interviews to be used for promotion of the Facility and its Catering Services.
4.4.4.7 Providing general contact information for the General Manager and Facilities General Manager of Sales.
A – Page 174 of 252
55575.38285\45131199.1
55575.38285\45119068.1
ARTICLE 5. TRANSFER OF SERVICES
5.4 Phase-In. The Contractor shall be expected to commence to phase in its services prior to July 1st, 2026.
5.2 Phase Out. The Contractor recognizes that the services provided by this Agreement are vital to the Center’s overall efforts to provide safe and pleasant convention and entertainment Facilities; that continuity thereof must be maintained at a consistently high level without interruption; that upon expiration of the Agreement a successor may continue these services; that its successor caterer shall need phase-in training; and that Caterer must cooperate in order to effect an orderly and efficient transition.
5.2.1 The Contractor shall perform a smooth and transparent transfer of services such that the transfer shall be all but unnoticeable to the City’s Users.
5.2.2 The Phase Out period will begin upon execution of an Agreement with Contractor’s successor up until expiration of this Agreement. Should Phase-Out services be required after
expiration of this Agreement, Contractor shall enter into a no- cost Transition Services Agreement with the City.
5.2.3 The Contractor shall be required to provide phase-out services prior to Agreement expiration to its successor caterer at no extra charge to the City. The Contractor shall be totally responsible for providing the services called for by the Agreement during its phase-out period and agrees to cooperate with its successor caterer in allowing as many personnel as practical to remain on the job in order to enhance the continuity and consistency of the services in the Agreement.
5.2.4 As part of Phase Out services, Contractor shall meet with its successor to plan transition and to identify all items, materials, equipment, operational activity, etc. that will transition to the successor caterer.
5.2.5 Additionally, at the termination or expiration of this Agreement, the Contractor shall assign all catering contracts and catering deposits, for events that are scheduled to occur after the effective date of termination, to the succeeding caterer and communicate with clients only with Facilities General Manager- approved materials.
ARTICLE 6. RIGHTS AND OBLIGATIONS OF CONTRACTOR
A – Page 175 of 252
55575.38285\45131199.1
55575.38285\45119068.1
6.1 Grant of Concession and Catering Rights. Contractor understands that customer service is of utmost importance to the City, All services provided under this Agreement shall be performed by Contractor in a manner that supports City’s goal to provide superior customer service, Contractor shall constantly endeavor to improve the Catering and Concession Services with a view toward developing maximum sales and service and to promote the marketing of the Center to Users of the Center, potential Users of the Center and their patrons. The Facilities General Manager will notify Contractor of any unacceptable levels of service and undesirable practices and Contractor shall immediately remedy service deficiencies and/or discontinue the undesirable practices promptly, Subject to the terms of this Agreement, the City hereby grants to Contractor the rights, and Contractor hereby accepts the obligations and duties, set forth below:
6.1.1 Contractor shall have the exclusive right to provide the Catering Sales and Concession Sales at the PSCC in its own capacity or through a Subcontractor.
6.1.2 The Contractor’s provision of Catering Sales and Concession Sales at the Center, in its own capacity or through a
Subcontractor, shall be subject to and in accordance with this Agreement.
6.1.3 Local Brands. Contractor shall provide a variety of innovative facility design concepts at the PSCC create a mix that includes, at a minimum, well know market-tested local or regional branded concepts, or proprietary brands through use of Local Brands at the PSCC.
6.1.4 Contractor and Subcontractors must receive the Facilities General Manager’s written approval for each Planned User Service or Novelty Service. The Facilities General Manager’s approval of the sale of items bearing the Center’s logo shall be based on the design, quality, and workmanship of each item and the approval shall not be unreasonably withheld. Gifts and novelties for special events are not within the exclusive right of Contractor under this Agreement.
6.1.5 Contractor, on behalf of the City, shall solicit and select Subcontractors to provide the Catering Sales and Concession Sales at the Center. Contractor shall manage the activities of each Subcontractor on behalf of the City in accordance with an agreement that shall be by and between the Contractor and Subcontractor. The City and Facilities General Manager reserve the right to review and approve any such agreements.
A – Page 176 of 252
55575.38285\45131199.1
55575.38285\45119068.1
6.1.6 Contractor shall have the exclusive right to provide alcoholic beverages at any event held at the Center.
6.1.6.1 Alcoholic Beverages, as a Direct Operating Cost, shall be offered for sale and served under a license issued
by the State of California and City of Palm Springs in
strict accordance with California state law and Article 19, Contractor’s privilege to provide alcoholic
beverages shall be subject to the provisions of
applicable California law and regulations of the
California Alcoholic Beverage Commission, or its
successor, The Facilities General Manager reserves
the right to limit which events alcoholic beverages are sold. The City acknowledges that while Contractor
shall use commercially reasonable efforts to obtain the requisite licenses to sell and service alcohol in a
prompt manner, issuance of such licenses is not wholly
within Contractor’s control and such licenses may not
be issued until some time following the Effective Date.
6.1.7 Contractor shall have the non-exclusive right to sell Novelty Services through concession stands or otherwise.
6.1.8 Use of the Center by an Outside Caterer shall not include the use of any of Contractor’s occupied areas, equipment or inventory other than the service corridors unless otherwise agreed by Contractor and the City or Facilities General Manager in writing.
6.1.9 Contractor shall have the right to market Contractor’s Catering and Concession Services in concert with the marketing efforts of the Facility and the Facilities General Manager.
6.1.10 Contractor shall pay Direct Operating Costs promptly and in all respects in accordance with Article 13.
6.1.11 Contractor may not provide Catering and Concession Services to any event located outside of the Center without the prior written approval of the Facilities General Manager. If approved, Catering and Concessions Services of an event outside of the Center shall be done under the PSCC Catering logo/name. All revenues generated for such outside events shall be considered part of the Gross Receipts under this Agreement and all requirements specified herein shall apply.
6.2 Changes to Scope of Catering and Concession Operations. If, during the Term of this Agreement, a Force Majeure, as defined below, in the scope of
A – Page 177 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Catering and Concession Services required at the Center, or any part of the Center, occurs, the Facilities General Manager shall notify Contractor in writing of such material change.
6.2.9 Within ten (10) calendar days of such notice or such other period of time as the parties may mutually agree, the parties shall meet and make good faith efforts to re-negotiate the terms of this Agreement to address such material change. The parties shall have sixty (60) calendar days or such other period of time as the parties may mutually agree following the notification of the Force Majeure to agree to the terms of an amended Agreement
pertaining to the Force Majeure. Any changes to the Agreement due to a Force Majeure shall be done through a written
Amendment.
6.2.2 If the parties fail to reach such agreement within the stated time period, either party shall have the right to terminate this Agreement upon providing the other party with at least twelve (12) months written notice. The transition provisions of the approved transition plan submitted pursuant to Article 5 shall apply in the event of such termination.
6.2.3 Based on the business and economic conditions related to the Force Majeure, the City and the Contractor shall meet and make good faith efforts to either extend, re-institute, modify these terms, and/or return to the original Contract terms.
6.2.4 Force Majeure shall mean: an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
6.3 Independent Catering. Without the prior written approval of the Facilities General Manager, the Contractor may not use the kitchen(s) areas, Temporary Kitchen, or Facilities to provide catering or other food and beverage services for events that are not sponsored by the City or held at
A – Page 178 of 252
55575.38285\45131199.1
55575.38285\45119068.1
the PSCC, Welwood Murray Memorial Library or the Palm Springs Visitor’s Center.
6.3.1 Any catering services performed using Center property for off- premises consumption, including, but not limited to, off-site catering, charitable meal delivery, or retail sale shall only be offered and must be branded under Palm Springs Convention Center Catering, or any successor in interest. Contracts and order forms shall also be branded under Palm Springs
Convention Center Catering, or any successor in interest. The Facilities General Manager has sole discretion to grant or deny any outside catering proposal or agreement.
6.4 Kitchen Management. Contractor shall serve as the kitchen manager to assure that all kitchen facilities, including Temporary Kitchens, and equipment are used in an appropriate manner consistent with industry standards and compliant with the County of Riverside Department of Health, City of Palm Springs or any other applicable entities or regulations.
6.5 Scheduled Events. Contractor shall serve as the PSCC exclusive food and beverage provider at all scheduled events, except as provided for in Section XXX Buy Out.Exhibit “D”.
6.5.1 For those scheduled events requiring food or beverage Concession Sales, the Contractor shall maintain an open concession stand from the time the Center’s doors open for the scheduled event until Center’s approved concession stand closing time, or as required by each event.
6.5.2 For other events, Contractor shall coordinate concession sales hours with the Facilities General Manager or his/her designee.
6.5.3 Contractor shall operate multiple concession locations within the Center when appropriate in an effort to efficiently maximize concessions sales.
6.5.4 Contractor shall maintain concession preparation and service areas in a clean and attractive state.
6.6 Specific Religious or Special Event Needs. The exclusive rights granted under this Agreement shall not be construed so as to prevent or prohibit either the City, or a licensee or lessee of the Center, with the Facilities General Manager’s approval, from engaging or contracting for an outside catering service to meet specific religious or special event needs, subject to payment of the Buyout Fee. However, the City will recommend Contractor as first choice for all catered events, provided Contractor demonstrates the required ability to meet the specific needs. Use of the Center by an outside
A – Page 179 of 252
55575.38285\45131199.1
55575.38285\45119068.1
catering service shall not include the use of any of Contractor’s occupied areas, inventory or equipment other than the service corridors unless otherwise agreed by Contractor and the City in writing.
6.7 City Use. During the Accounting Year, Catering and Concession services are available to the City in the Center for City Use events at actual cost and expense only for labor and food. “City Use” is defined in the Contract Services Agreement 25P206- Convention Center and Tourism Management Services.
6.7.1 All City Use events require prior written approval of the City Manager or designee and Facilities General Manager.
6.7.2 Catering and Concession services provided for City Use event’s actual cost and expense shall be deducted from the sum of the City’s Net Profit and Commission on an annual basis.
6.8 Kitchen Areas. Contractor has the exclusive right to manage the kitchen areas including the associated office, Temporary Kitchens and associated accommodations used during Construction, and storage spaces located at the Center, as applicable. No other caterer or third-party may use the Kitchen Areas without the Facilities General Managers prior approval.
6.9 Inconvenience During Construction. Contractor recognizes that from time to time it will be necessary for the City to initiate and carry forward programs of construction, reconstruction, expansion, relocation, maintenance and repair in order that the Center may be suitable to serve the community, and that such construction, reconstruction, expansion, relocation, maintenance and repair may inconvenience or temporarily interrupt Contractor’s operations at the Center. Contractor agrees that the City and its officers, agents, employees, concessionaires and representatives are not liable for such inconveniences or interruptions. Subject to any rights expressly reserved in this Agreement, Contractor waives any right to claim damages or other consideration due to such inconveniences or interruptions.
6.10 Notice of Events and Cancellations. The City shall assume no liability for cancellation of scheduled events.
6.11 Event Summary. Contractor shall provide to City and Facilities General Manager, in a format acceptable to Facilities General Manager, a monthly written summary of food and beverage sales at each event serviced by Contractor within thirty (30) calendar days after each Accounting Period or as requested by the City or Facilities General Manager, indicating where appropriate, customer pricing, guarantees, sales by area, total inventory sales, total register sales, and cash overages and shortages.
A – Page 180 of 252
55575.38285\45131199.1
55575.38285\45119068.1
6.11.1 If requested in writing by the Facilities General Manager, Contractor shall attach the corresponding deposit ticket and credit card transmission reports to all daily sales reports.
ARTICLE 7 OPERATIONS
7.1 General. The Facilities General Manager will provide Contractor with reasonable access to all parts of the Center necessary to enable Contractor to prepare for and operate the Catering and Concession Services.
7.1.1 Contractor shall keep the operations open during the hours as may be reasonably required to adequately meet public demand as determined by the Facilities General Manager.
7.2 Hours of Operation. The Contractor’s hours of operation shall generally be agreed to mutually by the Contractor and the Facilities General Manager; however, the Facilities General Manager will retain final authority.
7.3 Property Taxes. Notwithstanding any provision herein to the contrary, Contractor shall not be required to pay any taxes, assessments, fees, or any other costs relating to equipment or other property owned by the City. The City, and not Contractor, shall be solely responsible for paying any possessory interest tax assessed on Contractor’s activities at the Center. Contractor shall be responsible only for taxes on its income earned under this Agreement.
7.4 Improvements/Additions to Center by Contractor. Contractor shall not alter, nor make improvements or additions to the Center or change the decor of any part of the Center without Facilities General Manager’s prior written approval, and all designs for capital improvements to City property is subject to review and written approval by the Facilities General Manager.
7.4.1 Except as required by Federal, State or Local requirements, such as labor notices, Contractor shall not install any fixture, sign, device, or appurtenance on any exterior or semi-enclosed surface of any building without the written permission of the Facilities General Manager. City may specify conditions for installation of such fixtures, signs, devices, or appurtenances, including, but not limited to, painting to match surrounding building colors. Facilities General Manager’s approval for a sign or advertising device may include the location, type, size, and design of the proposed sign or advertising device.
7.5 Facility Damage. All damages shall be reported immediately to the Facility General Manager and submit a work order through the Facilities General Manager work-order system.
7.5.1 Payment of the cost of repair of damages done to equipment, fixtures, floors, ceilings, walls, windows, doors (including but not
A – Page 181 of 252
55575.38285\45131199.1
55575.38285\45119068.1
limited to, passenger, roll-up, and overhead doors), elevators, drains, toilets, sewer, or other property (normal wear and tear excepted) caused by the Contractor or its employees or
subcontractors’ negligence will be the responsibility of the Contractor as a Non-Allowable Expense.
7.6 Facility Maintenance. The Contractor shall maintain at all times all Catering and Concession Service areas, business offices, kitchen dock areas, and retail sales areas in a neat, professional, and sanitary condition; arrange for the cleaning and waste removal from all Catering and Concession areas to a central collection point.
7.7 Furnishings. Contractor shall maintain, clean, and disinfect the Furnishings used in the provision of the Catering and Concession Service within their Designated Areas.
7.7.1 The costs of all such maintenance included as Direct Operating Costs except to the extent paid from the Conventional Center Replacement Reserve Contribution
7.7.2 No equipment/furnishings should be stored, post-event, without prior cleaning of all surfaces, including, but not limited to, counter tops, shelves, where food or product comes in contact.
7.8 Equipment, Furnishing and Fixture Inspection. Contractor shall perform, on a regularly scheduled basis, routine inspections of all kitchen equipment to determine whether such equipment needs repair or replacement.
7.8.1 Contractor shall immediately report to the Facilities General Manager any required repair or replacement of Center fixtures or furnishings.
7.8.2 It is anticipated that on or about July 1 of each year, City or Facilities General Manager will perform an annual maintenance inspection of the kitchen facilities and other areas occupied by Contractor and its subcontractors. The City may change the date of the annual inspection as an Operational Change.
7.8.3 Contractor shall promptly coordinate with the Facility General Manager to cure any deficiencies that are identified in the inspection.
7.8.4 Nothing in this provision requires an annual inspection or limits City and Facilities General Manager’s rights to inspect the kitchens at any time during the Term of the Agreement. City or Facilities General Manager’s failure to inspect or identify deficiencies does not release Contractor of its maintenance obligations.
A – Page 182 of 252
55575.38285\45131199.1
55575.38285\45119068.1
7.9 Carpet Protection. All carpeted floor areas shall be protected with plastic and/or cardboard when setting up portable stands, bars, or service areas.
Contractor shall be responsible for carpet damage caused by the negligence of the Caterer, its subcontractors, or agents as a Non-Allowable Expense.
7.10 Cleaning. Contractor shall keep all areas of the Center, except seating areas, within a radius of ten (10) feet of each stand, commissary, concession, and Catering and Concession work area, clean and free from all rubbish.
Contractor shall employ the necessary personnel before, during and after hours of any event to ensure compliance with this Article 7.
7.11 Clean As You Go Policy. Contractor shall utilize a “clean-as-you-go” practice to include but not limited to cleaning spills, disinfecting surfaces, and keeping work surfaces free from clutter and rubbish.
7.11.1 Trash, spills, storage containers and other debris must be removed immediately to maintain the Center in a first class or tour-ready condition.
7.12 County Health Department Requirements. Contractor shall maintain proper sanitary cleaning procedures in the kitchen and comply with all state, county, and City sanitation regulations.
7.13 Inspections. Contractor shall immediately notify the Facilities General Manager, in writing, of any notices of violations which are received during or in connection with inspections including but not limited to health and fire inspections.
7.13.1 A copy of any such report received by Contractor shall be immediately sent to the Facilities General Manager. Contractor shall include action plans to correct conditions causing the violations. City and Facilities General Manager shall have the option to be present at all inspections and shall be given prior notice of inspections whenever possible within two (2) business days of inspection date.
7.14 Third-Party Sanitation. The Contractor shall engage a third-party sanitation inspector, approved by the Facilities General Manager, to conduct quarterly unannounced sanitation reviews (each a “Sanitation Review”) in at the specified locations.
7.14.1 Specified locations include but not limited to:
7.14.1.1 PSCC Kitchen (MainSouth)
7.14.1.2 PSCC Kitchen (Aux/Ballroom)
A – Page 183 of 252
55575.38285\45131199.1
55575.38285\45119068.1
7.14.1.3 Temporary Kitchen(s) set up during PSCC Construction
7.14.2 The cost of each quarterly sanitation Review shall be a Direct Operating Cost.
7.14.3 The third-party sanitation inspector will separately rate each of the food service Facilities on a 100-point scale, with 85 points being considered a passing grade (a “Passing Grade”).
7.14.4 The Contractor shall deliver the results of each such Sanitation Review to the Facilities General Manager immediately after said results are made available.
7.14.5 If during the Agreement, the parties replace the third-party sanitation inspector with a different sanitation inspector, the parties shall meet in good faith to determine the new inspection criteria, scoring scale and Passing Grade.
7.14.6 Notwithstanding, the City reserves the right to engage any other third party or perform inspections itself to ensure compliance with the requirements set forth in the entire Agreement.
7.15 City Inspection. The City reserves the right to notify Contractor at any time when conditions, in City or Facilities General Manager’s sole opinion, are unacceptable. As a Non-Allowable Expense, the Contractor will have twenty-four (24) hours from written notification to remedy the situation.
Should the Contractor require more than 24-hours to remedy the situation, Contractor shall notify the City and Facilities General Manager and both parties shall mutually agree on a schedule. Should Contractor fail to remedy the situation within the prescribed twenty-four (24) hours, or the agreed- upon schedule, City or Facilities General Manager will remedy the situation and invoice the Contractor for reimbursement. The reimbursement expense is a Non-Allowable Expense. Failure to meet this obligation shall be considered a material breach of this Agreement.
7.16 Kitchens and Food Preparation/Service Areas. The Contractor is solely responsible for maintaining the cleanliness of kitchen areas, food service areas (including all concession stands), and all equipment and supplies.
Contractor must maintain impeccable cleanliness and sanitation of all food service equipment and kitchen facilities, with the latter maintained in a clean and sanitary condition at all times before, during and after all services (including, but not limited to, sweeping and mopping of floors of all concessions/catering areas post-event, regularly scheduled sweeping and mopping of kitchen floors, and grease, dirt, etc.; “film” cannot be allowed to accumulate.
7.17 Tallow Services. The Contractor shall contract with a tallow service for disposal of any tallow waste such as oil and grease. The tallow services
A – Page 184 of 252
55575.38285\45131199.1
55575.38285\45119068.1
shall comply with all governmental laws and regulations concerning the disposal of tallow.
7.17.1 The Contractor shall not discharge any grease or oil into the City’s drains and shall keep grease and oil in containers for disposal by the Contractor.
7.17.2 If the Contractor fails to comply with this subsection, any cost, charge, fine or expense to the City involved in opening, cleaning, or repairing drains shall be paid by the Contractor as a Non- Allowable Expense.
7.18 Pest Control. The Contractor shall immediately report all pest sightings to the Facility General Manager and submit a work order through the City’s work- order system. The Contractor shall cooperate with the Facilities General Manager exterminators to control rodents and other vermin and pests (including flying pests/insects) as necessary.
7.18.1 Pest control services will be provided by the City or by a City contractor.
7.19 Sustainability. The Contractor shall operate in such a way as to ensure compliance with all environmental programs in which the City participates including but not limited to the requirement to establish, maintain and operate a program dedicated to the separation, collection and storage of materials for recycling, in accordance with the Palm Springs Municipal Code Section 5.87 and 6.04.300.
7.19.1 Unless otherwise directed by the City or Facilities General Manager, Contractor shall implement a recycling program within (30) calendar days of day one of the initial Agreement Term and Contractor shall continue said program throughout the Term of this Agreement.
7.19.2 A copy of Contractor’s recycling program shall be provided to the Facilities General Manager within (30) calendar days of the Term of this Agreement.
7.19.3 Contractor shall submit an annual report to the City’s Office of Sustainability outline all sustainability efforts conducted during the prior fiscal year.
7.20 Hazardous Waste. The Contractor shall be responsible for the proper disposal of all hazardous waste used to perform services herein including but not limited to canned heat products like Sterno cans.
7.21 Contractor’s Designated Dock and Receiving Areas. The Contractor shall maintain in a safe and sanitary condition the areas of the Facility’s receiving
A – Page 185 of 252
55575.38285\45131199.1
55575.38285\45119068.1
docks where food and beverages are delivered (which are under the supervision or control of the Contractor). For all purchases made by the Contractor for the successful execution of Catering and Concession Services, the Contractor shall coordinate with the Facilities’ receiving personnel, as necessary.
7.22 Other Areas. The Contractor is responsible for maintaining in clean condition all other areas under Contractor’s control.
ARTICLE 8 TECHNOLOGY
8.1 The Contractor shall provide and support the following necessary for the performance of Catering and Concession Services and Contractor’s other duties and obligations pursuant to the terms of this Agreement; the costs of which shall be deemed Direct Operating Costs: office equipment, cell phones, computers and computer-related equipment, desktop software licenses and maintenance (Microsoft Word, Excel, PowerPoint, etc.), laptops, tablets, mobile devices, printers, network equipment, and network servers.
8.2 The Contractor shall, during the Term of this Agreement may be required to purchase, administer, maintain, and support Enterprise Systems such as, but not limited to, inventory systems, financial system, time and attendance system and other Enterprise Systems and Software solutions necessary for the performance of Catering and Concession Services and Contractor’s other duties and obligations pursuant to the terms of this Agreement. The City reserves the right to require Contractor to utilize City’s approve (such approval not to be unreasonably withheld) the enterprise financial system, or a comparable enterprise system with the prior written approval of the City. utilized by Contractor hereunder..
8.2.1 City reserves the right to have the initial purchase of such systems and software part of the Convention Center
Replacement Reserve Contribution.
8.2.2 The cost of on-going maintenance and support of the systems and software shall be deemed Direct Operating Costs.
8.3 The Contractor shall during the Term of this Agreement, obtain high-speed internet service from a provider of their choice; the costs of which shall be deemed Direct Operating Costs. The internet service should be sufficient to support the requirements of Contractor’s office staff.
8.4 The Contractor shall utilize the Facilities booking and scheduling system as the Contractor’s primary system.
A – Page 186 of 252
55575.38285\45131199.1
55575.38285\45119068.1
8.5 The Contractor shall develop, implement and monitor acceptable use standards for computers and internet use that are consistent with City of Palm Springs Acceptable Use Policies.
8.6 The City recognizes changes and advancements exist in the technology and telecommunications industry. If Contractor wishes to upgrade or change their technology not previously identified in this Agreement, Contractor may request such change or upgrade in writing to the Facilities General Manager.
8.7 Information Technology Systems. In connection with the services being provided hereunder, Contractor may need to operate certain information technology systems not owned by the City (“Non-City Systems”), which may need to interface with internet access. Contractor shall be responsible for all Non-City Systems.
8.8 If Contractor serves as the merchant-of-record for any credit or debit card transactions in connection with any of the services provided hereunder, then Contractor shall be responsible for complying with all applicable laws, regulations and Payment Card Industry Data Security Standards (PCI-DSS) related to the protection of cardholder data (“Data Protection Rules”).
8.9 PCI Compliance. The Contractor shall comply with the Payment Card Industry Data Security Standards (PCI DSS) published by the PCI Security Standards Council, including any subsequent revisions, as applicable to the transactions processed while performing services through this Agreement.
8.9.1 The Contractor shall provide the City with annual PCI compliance audit (letter of Attestation), no later than December 31st of each year.
8.9.2 If the Contractor or any subcontractor becomes aware that the Contractor or subcontractor is not, or will not likely be, in compliance with PCI DSS for any reason in relation to its activities at the Center, the Contractor shall notify the City and Facilities General Manager, in writing, within 24 hours of the finding.
8.9.3 The Contractor shall immediately notify the Facility General Manager, in writing, if the following conditions arise:
8.9.3.1 The Contractor becomes aware that Contractor or subcontractor is not, or will not likely be, in compliance with PCI DSS for any reason in relation to its activities at the Center.
A – Page 187 of 252
55575.38285\45131199.1
55575.38285\45119068.1
8.9.3.2 The Contractor becomes aware of any suspected,
alleged or confirmed theft or compromise of cardholder
data or card transaction information.
ARTICLE 9. CITY’S RIGHT TO ACCESS
9.9 City Right of Access. The City shall have 24-hour access to all parts of the Center and other areas in which Contractor may be working. To the fullest extent possible, City shall provide reasonable prior notice to Contractor prior to accessing any secured areas of the Center in which Contractor is operating (including, without limitation, any money room at the Center). City may inspect any area controlled or occupied by Contractor to determine compliance with health, fire, security, safety, maintenance and sanitation standards and may immediately enter any area if required to assess or respond to an event or condition that, in the City’s sole opinion, creates an imminent danger of injury or damage to persons or property. Nothing herein shall be held to limit or qualify the right of the City to a free and unobstructed use, occupation, and control of the Center, or of the City’s right of ingress and egress to the Center for itself, its caterers and the public.
9.10 City’s Right to Use. The City shall have the right to use. upon reasonable prior written notice to Contractor, any spaces in the Center, for non-food service events at any time, including spaces that have been previously committed by the Facilities General Manager for use in connection with the Catering and Concession Services under this Agreement, provided such use does not materially interfere with Contractor’s ability to perform its services hereunder.
9.3 Waiver of Responsibility. The City shall not be responsible under any circumstances for loss or damage to Contractor’s supplies, materials, or to any improvements made to Contractor’s Designated Areas or any other areas where Contractor performs the Catering and Concession Services, or to any personal belongings of Contractor or Contractor’s Personnel brought into the Center except to the extent allowed by law.
ARTICLE 10. OBLIGATIONS OF THE CITY
10.3 Contractor’s Office and Storage Space. In addition to the space to be designated pursuant to Article 6, the City and Facilities General Manager shall make available to Contractor (a) office space in the Facility that is adequate in all respects with appropriate furnishings for Contractor’s accounting, record keeping, Sales, administration support, kitchen operations, and money counting functions, if applicable; and (b) reasonable storage and commissary space for stock and equipment; provided however that City shall not be responsible for any office support, office equipment, or office supplies. Contractor may not use the City’s equipment or office supplies.
A – Page 188 of 252
55575.38285\45131199.1
55575.38285\45119068.1
10.1.1 The Facilities General Manager will provide space in each data wiring closet for Contractor’s network equipment in order to enable delivery of Contractor network connectivity to its employees.
10.2 Utility Services.
10.2.1 The cost to repair or replace any utility service or lines due to damages caused by Contractor’s negligence and willful
misconduct, its subcontractors or personnel shall be at Contractor’s expense and not as a Direct Operating Cost.
10.2.2 The City shall furnish to Contractor all utilities, including electricity, gas and water, to enable Contractor to perform its duties hereunder. Neither the City nor Contractor shall be liable or responsible for any failure to furnish any services including electricity, gas, water, or drainage service, which failure is caused or brought about in any manner by an event of Force Majeure, the breakdown or failure of apparatus, equipment, or machinery employed in its supply of said services, any
temporary stoppage for the repair, improvement, or enlargement thereof, or any act or condition beyond its reasonable control.
Further, neither the City nor Contractor shall be liable or responsible for any consequential, economic or property loss or damage caused or brought about by any such occurrence.
10.3 Parking. All Contractor parking shall be coordinated with the Facilities General Manager. Contractor acknowledges that a portion of the Convention Center parking is governed by a lease of real property the property (APNs 508-055-009, -008 and -007) referred to as the “Prairie Schooner Lot” and which is owned by a private party. A copy of the Amended and Restated Parking Lot License Agreement has been provided to Contractor and is on file in the Office of the City Clerk.
ARTICLE 11.CHANGES TO CITY POLICIES.
11.1 CHANGES TO CITY POLICIES. IN THE EVENT CHANGES TO ANY OF THE CITY’S POLICIES REFERENCED IN THIS AGREEMENT OCCUR DURING THE TERM OF THIS AGREEMENT, IT WILL BE THE CITY’S RESPONSIBILITY TO INFORM CONTRACTOR OF ANY SUCH CHANGES.
11.2 Food Service General Manager and Essential Management Positions. The Contractor shall employ a highly skilled professional full-time, on-site management staff possessing the necessary experience and expertise to provide the overall management of a Catering and Concession Services.
11.3 Annual Staffing Plan. For purposes of determining allowable Direct Operating Costs, the Contractor shall submit an Annual Staffing Plan no later than May
A – Page 189 of 252
55575.38285\45131199.1
55575.38285\45119068.1
1st for the forthcoming Accounting Year for approval by the City and the Facilities General Manager. The Annual Staffing Plan shall be reflective of each of the Construction Phases and shall identify the “Essential Management Positions” needed for the corresponding Phase.
11.3.2 The Contractor’s Annual Staffing Plan shall propose the number, function, qualifications, and compensation, (including an itemized detail stating the salary, bonus calculation, bonus amount(s) and benefits) of its Essential Management Employees and shall control the terms and conditions of employment relating to such employees. The City and Facilities General Manager have the right to review and approve staffing levels and proposed Staffing Plan.
11.3.2 As part of the Annual Staffing Plan, the contractor shall include a management organizational chart detailing each position specified within the plan.
11.3.3 Full-time management expense that has not received prior written approval to the extent expressly required herein will not be a Direct Operating Cost.
11.3.4 City, through the Facilities General Manager, approved severance packages associated with the Construction shall be a Direct Operating Cost.
11.4 Food Service General Manager (FSGM).
11.4.2 The Contractor shall employ a FSGM at the Center. Unless otherwise agreed by the Facilities General Manager and City, the FSGM must have a minimum of five (5) years’ experience in operating foodservices with a minimum of two (2) years of consecutive employment in a convention center operation with comparable responsibilities.
11.4.1.1 The FSGM must have education and/or experience in food and beverage service with particular emphasis
upon effective marketing techniques.
11.4.1.2 The FSGM must have a high degree of management expertise, as evidenced by prior food and beverage
service management duties involving convention
center food and beverage service operations, high
quality food production and service, and effective
financial controls.
A – Page 190 of 252
55575.38285\45131199.1
55575.38285\45119068.1
11.4.1.3 The FSGM shall coordinate all Catering and
Concession Services with subcontractors, vendors,
and/or Contractor’s Personnel. The FSGM shall be
responsible for all Catering and Concession Services
provided by the Contractor and shall seek to avoid any
disruption in service to Users of the Center.
11.4.2 Should the Facilities General Manager determine that the FSGM is not satisfactorily performing the duties of the FSGM, subject to compliance with all laws and this Agreement, Contractor shall, within thirty (30) calendar days of receipt of written notice of such dissatisfaction, meet with the Facilities General Manager to discuss its concerns. Should the FSGM’s performance fail to address the specific concerns of the Facilities General Manager to the City’s satisfaction within a mutually agreed upon timeline between the City and Contractor, Contractor shall replace the FSGM. Any replacement of the FSGM shall be in the
Contractor’s sole discretion, but Contractor shall take into account the Facilities General Manager’s requests, which may include replacing the FSGM with one who is satisfactory to the Facilities General Manager and City. To the extent Facilities General Manager requests such dismissal of the FSGM,
Facilities General Manager approved costs associated with the hiring of a replacement FSGM, shall be deemed Direct Operating Costs. Unless the Facilities General Manager agrees to a severance package in writing, any severance package
Contractor gives the FSGM under these circumstances shall be paid by Contractor and not as a Direct Operating Cost. In the event the City and Facilities General Manager approve a severance package, such severance package shall be a Direct Operating Cost.
11.5.1 Essential Management Positions. The City and Facilities General Manager, shall have the right to approve the hiring of the Essential Management Positions (such employees, the “Essential Management Employees”), otherwise City shall be deemed to approve of such Essential Management Employees. In the event Contractor seeks to replace any of the Essential Management Employees with different personnel, such replacement shall be subject to the approval of the Facilities General Manager, which shall not be unreasonably withheld, conditioned or delayed.
11.5.2 The following positions (and only the following positions) shall be deemed “Essential Management Positions:”
11.5.2.1 Food Service General Manager.
11.5.2.2 Executive Chef.
A – Page 191 of 252
55575.38285\45131199.1
55575.38285\45119068.1
11.6 Sales and Marketing Contractor Personnel Requirements.
The Contractor shall:
11.6.2 Employ a reasonable number of employees necessary to perform services specified herein.
11.6.3 Supervise all employees to ensure high quality performance of the services.
11.6.4 Require that the FSGM or his designee be on the Center premises during all operating hours.
11.6.5 Recruit, employ, and train all employees necessary for the successful operation of Concessions and Catering Services.
11.6.6 Training of the Contractor’s employees must include safety training, customer service, dealing with customer complaints, or any other training appropriate for the job function, including but not limited to cash handling, and ABC certification; the costs of all such training being deemed Direct Operating Costs.
11.6.7 Provide and maintain uniforms for all Contractor’s employees.
11.6.7.1 Each employee shall be neatly attired in an approved uniform, including a visible name tag.
11.6.7.2 The design of such uniforms shall be approved by the Facilities General Manager. It is the Contractor’s
responsibility to design and prepare specifications for uniforms for Catering and Concession employees to
wear at all events, including visible name tag, and
obtain Facilities General Manager’s approval of
uniform design. The costs relating to such uniforms is
a Direct Operating Costs.
11.6.7.3 Be solely responsible for the hygiene and appearance of its employees. The Facilities General Manager will
have the right to establish employees’ minimum
hygiene and appearance standards.
11.6.7.4 Be responsible for employing competent and orderly employees who are neat, clean, and professional in
appearance, who act in a courteous and competent
manner, and who treat all patrons in a respectful
manner.
11.6.7.5 Ensure the Contractor, its employees, subcontractors, and subcontractor’s employees shall not, while on any
A – Page 192 of 252
55575.38285\45131199.1
55575.38285\45119068.1
premises of the City of Palm Springs in accordance
with City policy:
11.6.7.6 The Contractor, it’s employees,
subcontractors, subcontractor’s employees
shall not illegally use or possess a firearm on
any premises of the City of Palm Springs in
accordance with City policy, and State Law,
including but not limited to persons holding a
State concealed handgun license permit.
11.6.7.7 Use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled
substances, nor may such workers be
intoxicated, or under the influence of alcohol
or drugs, on the job.
11.6.7.8 Contractor shall not discriminate against any
employee or applicant for employment
because of actual or perceived race, religion,
color, sex, age, marital status, ancestry,
national origin ( i.e ., place of origin,
immigration status, cultural or linguistic
characteristics, or ethnicity), sexual
orientation, gender identity, gender
expression, physical or mental disability, or
medical condition (each a “prohibited basis”).
11.6.7.9 Contractor shall ensure that applicants are
employed, and that employees are treated
during their employment, without regard to
any prohibited basis.
11.6.7.10 Contractor certifies that its actions and
omissions hereunder shall not incorporate
any discrimination arising from or related to
any prohibited basis in any Contractor
activity, including but not limited to the
following: employment, upgrading, demotion
or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay
or other forms of compensation; and
selection for training, including
apprenticeship; and further, that Contractor is
in full compliance with the provisions of Palm
A – Page 193 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Springs Municipal Code Section 7.05.02,
including without limitation the provision of
benefits, relating to non-discrimination in city
contracting.
11.6.7 Immediately investigate the allegations if any employee, subcontractor or subcontractor’s employee is alleged to be incompetent, disorderly, violated any applicable City policy or procedure, civil or criminal laws, or is under the influence of alcohol or drugs. While the due diligence is being conducted Contractor shall remove such worker from the Center and from providing services pursuant to this Agreement and may not employ such worker again at the Center without the Facilities General Manager’s prior written consent and documentation from the Contractor demonstrating that the allegations are unfounded. The City shall not be liable for Contractor’s relationship with its employees or subcontractors.
11.6.8 Contractor shall coordinate with the College of the Desert Culinary Program for interns and potential employee recruitment.
11.7 Temporary Employees. The Contractor shall advise temporary employees to enter and remain on the Center’s premises only during events at the Center and for a reasonable time prior to and subsequent to events, and only for the purpose of exercising, during events, the rights and privileges herein mentioned.
11.8 Personnel Policy. Upon request, the Contractor shall provide the City and Facilities General Manager with a copy of Contractor’s Personnel Policy which shall require all Contractor’s Personnel under this Agreement to comply with all instructions, regulations and codes of conduct as specified by the Personnel Policy and any additional policies promulgated from time to time in writing by the Facilities General Manager, which will be provided on an ongoing basis that apply to all staff at the Center and so long as such policies are not inconsistent with Contractor’s Personal Policies.
11.8.1 All temporary agencies who provide personnel to Contractor (personnel not employed, but used by Contractor) shall be provided with a copy of Contractor’s Personnel Policy as it relates to instructions, regulations, policies and codes of conduct of Contractor Personnel within the Center. The temporary agencies shall be instructed to educate any such personnel as to the applicable instructions, regulations, policies and code of conduct.
11.9 Personnel Substitutions. The Contractor shall ensure that only trained staff shall substitute for regular employees during their absence. Contractor shall
A – Page 194 of 252
55575.38285\45131199.1
55575.38285\45119068.1
furnish names to the Facilities General Manager of such substitute management employees to be used at the Center and ensure appropriate identification badges are issued by the Center.
11.10 Employee Acts. Subject to applicable laws (including any applicable privacy laws), Contractor shall immediately report to the City and Facilities General Manager any known criminal acts or violations of the law (including theft, embezzlement), or any crimes of moral turpitude or crimes against persons, or any serious violations of the applicable City or Contractor’s policies or procedures by any employees of Contractor or its subcontractors. Upon Contractors receipt of knowledge of any such suspected criminal acts or violation of the law, Contractor shall immediately investigate and notify the Facilities General Manager in writing if any such criminal acts or violation of the law have occurred and immediately take appropriate remedial action in accordance with the law. Upon written notification, the Facilities General Manager may, in his sole discretion, ask that any such Contractor personnel be immediately removed from providing services under this Agreement.
11.11 The Contractor shall provide immediate notification to the Facility General Manager if Contractor has a current or former employee who has expressed threats of harm or violence against any individual, group of individuals, the Contractor, the Center or its personnel, the City, Users of the Center or the general public.
11.12 Non-Employees of the Center. Personnel supplied by the Contractor shall be deemed employees of the Contractor and will not be considered employees or agents of the City or Facilities General Manager for any purpose. The City and Facilities General Manager will not be liable to any party if any employees contract with the Contractor is breached, modified or terminated. The Contractor assumes full responsibility for the actions of such personnel while performing services pursuant to this Agreement, and shall be solely responsible for training, supervision, daily direction and control and payment of compensation for such personnel.
11.13 Labor Relations
11.13.1 Subject to an event of Force Majeure or a Significant Event, as defined in this Agreement, Contractor agrees to provide undisturbed Catering and Concession Services under this Agreement regardless of strikes and other labor shortages and disputes to the extent allowed by law.
11.13.2 The Contractor shall be responsible for its own labor relations with any trade or union represented among Contractor’s
Personnel and shall negotiate and be responsible for adjusting all disputes between itself and Contractor’s Personnel or any union representing such employees. Contractor shall ensure that
A – Page 195 of 252
55575.38285\45131199.1
55575.38285\45119068.1
in any agreement that Contractor has with any of its
subcontractors that there be a similar provision whereby the subcontractors will indemnify and hold City harmless for any damages or losses including attorney’s fees resulting from labor relation disputes.
11.13.3 Labor Harmony Agreement
11.13.3.1 Contractor acknowledges that for the duration of the term of the Agreement, the Facilities are a source of
tax and other revenues to the City, and that the City
has an interest in ensuring that the operation of the
Facilities are not disrupted by labor disputes. As a
result, the Contractor agrees to enter into one or more labor harmony agreements, each of which shall be
subject to the parties’ mutual agreement, each acting
in its sole discretion (each a “Labor Harmony
Agreement”) if labor organizations which represent
workers in Palm Springs that have indicated or may
indicate their intent to organize operation and
maintenance workers at the Facilities.
11.13.3.2 Such labor organizations may include, but not be limited to, UNITE HERE Local 11, and UFCW 1167.
Each Labor Harmony Agreement shall contain
provisions under which the labor union, for itself and its members, agrees, at a minimum, to limit the right to
engage in concerted economic action at the
Convention Center aimed at bringing economic
pressure to bear against the City and Contractor,
including limitations of activities such as striking,
picketing, lock outs, boycotting or any other disruptive labor action.
11.10.1.1 Contractor shall maintain any Labor Harmony
Agreements for the duration of the term of the
Agreement to ensure the City’s uninterrupted
revenues, whether arising directly or indirectly, from the operation of the Facilities. Contractor shall provide a copy of each executed Labor Harmony Agreement to
the City promptly following its execution. Contractor
A – Page 196 of 252
55575.38285\45131199.1
55575.38285\45119068.1
shall use commercially reasonable efforts to ensure
that the obligation to enter Labor Harmony Agreements
is included in all agreements with concessionaires,
contractors, and sub-contractors at or within the
Facilities.
ARTICLE 12 COMPENSATION
12.1 Compensation. Compensation. Beginning July 1, 2026, the Contractor shall be entitled to compensation for services under this Agreement based on a Management Fee Approach.
12.1.1 The “Management Fee” shall be the annual amount paid to Contractor outlined in Exhibit “B”.
12.1.2 Contractor shall not be responsible for Net Losses, except Contractor agrees to advance and carry any Net Losses incurred in the first (1st) three (3) months of operation following the Effective Date (subject to reimbursement pursuant to the terms of this paragraph). In the event the Contractor sustains any Net Losses in any month, Contractor shall submit an invoice with their monthly accounting statement detailing the amount of such loss. These Net Losses will be covered byrepaid to Contractor from future Net Profits. that would otherwise be paid to the City.
Without limiting the foregoing, in the first Accounting Year, Operator may withhold from the Investment $500,000 to pay for any Net Losses incurred in such year, as described in Section
12.1.2.1 below. In each subsequent Accounting Year, Operator may withhold from Net Profits that would otherwise be paid to the City $100,000 per month from the months of January through and include May (5 months, totaling $500,000), to pay for any Net Losses incurred in the remaining months of such Accounting Years. If there are any Net Losses still being carried by Contractor at the end of any Accounting Year, the calendar year, this amount shall carry over to the following fiscal year.
12.1.2.1 As described above, in the first (1st) contract year only Contractor shallmay utilize an amount not to exceed
Five Hundred Thousand Dollars ($500,000) of the
Capital Investment to offset any Net Loss sustained
within the first six (6) months of the Effective Date of the Agreement. In such case, Contractor shall pay
back and make the Capital Investment whole with
future Net Profits that would otherwise be paid to the
City.
A – Page 197 of 252
55575.38285\45131199.1
55575.38285\45119068.1
12.1.3 The Facilities General Manager and the Contractor will agree to an annual budget and reasonable operating expense ratios for product cost, payroll cost, and other Direct Operating Cost components (the “Authorized Operating Expenses”). The budget and expense ratios are an estimate only and actual results may be affected by the number and type of events held at the Center, the number of attendees at such events, and other factors.
12.1.4 The Contractor will provide monthly accounting statements to the Facilities General Manager by the 15th of each month along with the portion of Net Profits (if any) payable to City for such month.
Contractor may offset and deduct from such payments to the City any amounts owed to Contractor hereunder, including from Contractor’s carrying of Net Losses from a prior month.
12.2 Catering and Concession Account. The Contractor shall establish a Catering and Concession Account, on behalf of the City, at a financial institution agreeable to the City and Facilities General Manager, separate from all other accounts, and shall deposit therein all monies and revenues of any type generated pursuant to this Agreement.
The Catering and Concession Account shall be used exclusively for deposit of Gross Receipts.
12.2.1 The above may be accomplished by Contractor managing disbursements and lock box transactions with Contractor’s controlled accounts, with full accounting transactions provided to the City.
12.2.2 Contractor funding ofshall fund Net Losses for the first three (3) months of the Agreement. Notwithstanding the foregoing after initial deposit of Gross Receipts in the Catering and Concessions Account, Contractor may transfer the funds in such account to a corporate account of Contractor where such funds may be commingled with funds from Contractor’s other operations.
Contractor may pay Direct Operating Costs from such corporate account. However, Contractor shall at all times maintain a separate accounting of all Gross Receipts and Direct Operating Costs and provide a report on such Gross Receipts and Direct Operating Costs on a monthly basis.
12.3 Capital Investment Account
12.3.1 Contractor will make available to the City up to $2,500,000 (the “Capital Investment”)
A – Page 198 of 252
55575.38285\45131199.1
55575.38285\45119068.1
12.3.1.1 Contractor is prepared to make a total capital investment of Two Million Five Hundred Thousand
Dollars ($2,500,000.00) (the “Capital Investment”).
Capital investment will be paid as follows:
12.3.1.2 Two Million Two Hundred Fifty Thousand Dollars ($2,250,000) to be paid as follows: (i) One Million
Seven Hundred Fifty Thousand Dollars ($1,750,000)
by December 1, 2026 (to be reduced to the extent
funds are used for the purpose described in Section
12.1.2.1 above) ; and (ii) $500,000 on or before the first anniversary of the Effective Date. These portions of the Capital Investment will be used (i) for the Point of Sale System Contractor will secure for its operations at the Center, and (ii) for any improvements to the Palm
Springs Convention Center within the City’s discretion
and timing after close consultation with Contractor;
however, City shall utilize these funds in its sole
discretion; and
12.3.1.3 Two Hundred Fifty Thousand Dollars ($250,000.00) of the Capital Investment will be dedicated to the Start-up Transition Costs for management to Contractor. Any
amount of this portion of the Capital Investment
remaining after paying all of Contractor’s costs to
transition management to Contractor shall be used for
other improvements to the Palm Springs Convention
Center City within the City’s discretion and timing after close consultation with Contractor to be paid within (30) thirty days of the Effective Date; however, City shall
utilize these funds in its sole discretion.
12.3.1.4 The Capital Investment shall be amortized monthly on a straight-line basis on Contractor’s books over a five (5)-year period (at a rate of 1/60 per month),
commencing on the Effective Date. Within 30 days of
the expiration or early termination of this Agreement
(for any reason whatsoever, including without
limitation, if due to a breach, default, or bankruptcy
event by or affecting Contractor, the City shall
immediately pay to Contractor the unamortized amount
of the Investment (the “Buyout Amount”). In the event
that City fails to pay Contractor the Buyout Amount
when due, the Buyout Amount shall accrue interest at
A – Page 199 of 252
55575.38285\45131199.1
55575.38285\45119068.1
the rate of 1% per month, or the highest rate permitted by law, whichever is less.
12.3.2 The obligation to pay for, and authority to perform, direct and supervise Capital Equipment purchases shall remain with City and will not be considered Operating Expenses. Contractor shall provide all reasonable means to assist to City in connection with coordinating and scheduling all Capital Equipment purchases so as to minimize any interference with events at or business operations within the Facilities. The annual plan submitted pursuant to Section 19 shall include Contractor’s
recommendation for Capital Equipment purchases to be
accomplished during the year, as well as a five-year plan for Capital Equipment purchases. Such plan shall be accompanied by an estimate of the cost of all such items and a request that City budget funds therefor. City shall retain the discretion to determine whether and to what level to fund Capital Equipment purchases to the Facilities.
12.3.3 Title to any non-fixture equipment purchased with Capital Investment funds shall remain with City.
ARTICLE 13 ACCOUNTING
13.1 Change Fund. The Contractor shall establish, with its own funds, and shall maintain throughout the term of the Agreement a “Change Fund” to be used for cash bank and petty cash purposes. The funds in the Change Fund shall be and remain the property of the Contractor’s Corporate office. Contractor shall not permit any of its employees to make change from open cash drawers, boxes, or containers, or from pockets of clothing.
13.2 Financial Documents. The Contractor shall deliver the following documents to the Facilities General Manager within the time periods stated, together with any documents or reports required by this Agreement The same categories of personnel and operating costs used in the annual budget shall be itemized in the monthly income statement. Contractor must be able to account for any earned interest on amounts held in the Catering and Concession Account. The income statement should include current Accounting Year budgeted and actual, month, and year-to-date amounts, with a comparison to the corresponding Accounting Period from the preceding Accounting Year.
13.2.1 Financial reports regarding its provision of Catering and Concession Services during such month, including a statement showing Gross Receipts and Direct Operating Costs for the applicable period.
13.2.2 Additionally, OVG shall provide to Owner, within 24 hours following each event at the Facility, a daily Gross Receipts report in a form to be mutually agreed upon.
A – Page 200 of 252
55575.38285\45131199.1
55575.38285\45119068.1
13.2.3 City may make requests for additional reports to be provided by Operating Memorandum executed between the Parties.
13.2.1 The Contractor shall also provide a detailed schedule of all expenditures from the Smallware Reserve Fund within thirty (30) calendar days after the end of each quarter in the Accounting Year.
13.3 Direct Operating Costs. Subject to all of the terms and conditions of this Agreement, the Contractor shall be allowed to deduct the Direct Operating Costs from the Gross Receipts for the following costs as actually incurred and paid by Contractor in the management and operation of the Catering and Concessions Services at the Center. These costs shall be limited to the actual expenses incurred and paid by the Contractor, without any mark up.
13.3.1 For any cost the Contractor seeks to deduct as a Direct Operating Cost but the City does not agree, both parties shall meet to discuss Contractor’s rationale. Both parties will make good faith efforts to agree on whether or not the cost will be allowed.
13.3.2 Prior to submission of the Financial Documents (Article 13.2), the Contractor shall submit a written request to the Facilities General Manager for any cost not listed below, but for which the Contractor believes to be a Direct Operating Cost. Upon written approval by the Facilities General Manager, the cost will be considered a Direct Operating Cost.
13.3.2.1 The Contractor shall provide the Facilities General Manager’s written approval with all related Financial
Documents (Article 13.2).
13.3.3 Direct Operating Costs shall include, but not be limited to, the following items:
13.3.3.1 Cost of food and beverage products and supplies
13.3.3.1 13.3.3.2 on-site personnel direct costs, including salaries (including sick, vacation, and holiday pay) and
overtime; benefits; cost of relocation (only FSGM and
Executive Chef, if applicable); and payroll taxes.
13.3.3.2 The cost of temporary contract labor and
subcontractors necessary to carry out the Catering and
A – Page 201 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Concessions Services at the Center; The cost of
licenses, insurance, permits and fees associated
therewith, pre-employment testing, criminal
background checks, local personnel recruiting
expenses to include advertising for recruits, cellular
telephone service.
13.3.3.3 Laundry and linen services, cleaning and maintenance costs, including, without limitation, all costs in
performance of the obligations set forth in Article 7.
13.3.3.4 The lease or rental of Temporary Kitchen(s) and other temporary accommodations needed to continue
services during Construction. Contractor shall have
City and Facilities General Manager’s prior approval
before incurring any costs associated with Temporary
Kitchen(s) or accommodations.
13.3.3.5 The reasonable cost of necessary and appropriate training for Contractor employees working at the
Center.
13.3.3.6 Cost of annual maintenance and support agreements associated with enterprise systems as defined in
Article 8.
13.3.3.7 Expenses incurred during travel for meals and lodging should be reasonable. Expenses for food and lodging
must be based upon actual, reasonable expenses
incurred. Original cash register or credit card receipts for all meals and lodging expenses greater than the
approved GSA per diem must be maintained and listed
in the reports to City and Facilities General Manager as provided in the Reports and Audits and the Monthly
Reports sections of the agreement. Charges for meals
or services on hotel bills should be entered separately from the room charge. Vehicle mileage will be
reimbursed at the federal mileage reimbursement rate
published by the Internal Revenue Service for the year
in which the expense is reported.
13.3.3.8 Contractor and its employees may rent automobiles when other transportation is not available, or when
such use is considered the most reasonable and
economical mode of travel under the circumstances.
Any long-term car lease (one week or more) by
Contractor or its employees shall not be considered an
A – Page 202 of 252
55575.38285\45131199.1
55575.38285\45119068.1
Operating Expense of Contractor. Whenever possible,
Contractor should use rental companies which provide
the lowest rates. In order to minimize costs, travelers should choose economy-class cars whenever
possible.
13.3.3.9 Travel (economy class), lodging and related out-of- pocket expenses of officers, Facilities General
Managers and corporate personnel of Contractor
properly allocable to the performance of Contractor’s
obligations under this Agreement are not to exceed
$25,000 each Fiscal Year without Facilities General
Manager’s prior written consent.
13.3.3.10 Expenses shall not include costs of salaries and benefits of employees of Contractor, unless such costs
are included in the Approved Budget, and any
expenses relating to Contractor personnel based in its
headquarters or any regional field locations.
13.3.3.11 Subject to the prior written approval and discretion of the Facilities General Manager, the pro-rata salaries of Contractor personnel brought from other Corporate
facilities who will assist with workloads at the Center during peak demand periods.
13.3.3.12 Cash shortages ½% or less of Concession Sales are considered Direct Operating Costs. The Facilities
General Manager has sole discretion in determining
whether cash shortages greater than ½% of
Concession Sales are a Direct Operating Cost.
Shortages above ½% must be reported to the Facilities
General Manager immediately after discovered, with
causes of the shortage and proposed actions to
prevent future occurrences.
13.3.3.13 Costs of items not meeting eligibility requirements under Article 14.
13.3.3.14 Office and computer equipment and high-speed
internet service as defined in Article 8. All purchases of office and computer equipment must have prior written
approval by the Facilities General Manager.
13.3.3.15 Allocated insurance costs (including liquor liability insurance).
A – Page 203 of 252
55575.38285\45131199.1
55575.38285\45119068.1
13.3.3.16 The cost of obtaining and maintaining the Change Fund required pursuant to Article 13.1.
13.3.3.17 Costs of ABC training of staff and management required pursuant to Article 11. Cost of obtaining all licenses and permits, including all alcohol licenses and permits (the alcohol licenses shall become City assets
at the end of the term).
13.3.3.18 Legal expenses incurred solely with respect to matters at the Center unless Contractor is found to be guilty by a Court of competent jurisdiction.
13.3.3.19 Facilities General Manager approved
severance package for FSGM pursuant to Article 11.
Severance package will be deemed a Direct Operating
Cost.
13.4 Allowable Expenses. The following expenses shall not be included as Direct Operating Costs. Non-allowable expenses are to be paid by Contractor at its sole cost and expense.
13.4.1 Any other costs expressly identified in the Agreement as costs to be borne solely by the Contractor, or from the Contractor’s own funds.
13.4.2 Salaries, costs and expenses of non-resident or Contractor’s Corporate office legal, internal audit, administrative, financial, and executive personnel or other general Corporate overhead costs.
13.4.3 The costs or expenses of legal representation and administration if the Contractor is found to be guilty by a court of competent jurisdiction in a matter arising specifically with respect to a matter involving the Center. (See Article 13.3 for legal expenses considered Direct Operating Cost). Also considered non- allowable expenses are costs incurred which are not solely with respect to matters at the Center, whether the Contractor is guilty or not guilty.
13.4.4 Contractor’s income taxes and other taxes not included as Direct Operating Costs.
13.4.5 Any or all liquidated damages, penalties, late charges, and fines paid by Contractor or owed to the City or any third party, and its employees. This includes, but is not limited to, penalties and interest charges on any payments due, including but not limited to penalties and interest charges on payment of all taxes.
A – Page 204 of 252
55575.38285\45131199.1
55575.38285\45119068.1
13.4.6 Amounts payable by Contractor to City under the indemnification provisions hereof.
13.4.7 The cost of repairs for damages to the Center or its improvements or equipment to the extent caused by the
negligence or willful misconduct of Contractor or its employees, vendors, agents, or subcontractors.
13.4.8 All travel costs and salary expenses of Contractor’s General Manager or other staff working at Center, who travel to assist any facility other than the Center, during their peak demand periods except to the extent approved by the Facilities General Manager in writing prior to travel.
13.4.9 Penalties and interest charges paid resulting from Contractor’s payments to the vendors after the due date on non-disputed invoices are Non-Allowable Expenses.
13.4.11 Administrative, re-stocking, or shipping fees or costs associated with Contractor purchases that are returned due to, but not limited, an error in the purchase (incorrect color, size, shape, quantity, brand etc.); a change in Contractor’s plans,
circumstances, or direction; or purchase becomes unwanted/no longer needed.
13.4.12 Costs specifically not allowable pursuant to the terms in Article
14. 13.4.13 Administrative charges not intended to be a tip or gratuity for the benefit of service employees collected from Catering Sales; such charges are included in Gross Receipts.
13.4.14 Costs of lost or missing Facility security control devices, such as access cards.
13.4.15 Cost associated with the initial purchase or installation of Enterprise Systems as defined in Article 8; such costs are included in either the amortization expense of the Conventional Center Replacement Reserve Contribution which are Direct Operating Costs.
13.4.16 Severance pay to any Contractor’s personnel specifically asked to be removed by the Facilities General Manager from providing
A – Page 205 of 252
55575.38285\45131199.1
55575.38285\45119068.1
services under this Agreement unless the Facilities General Manager approves a severance package in writing at the time the Facilities General Manager asks for the removal of such employee.
13.5 Income Reporting. The Contractor shall take all precautions to ensure that all income received from any source are immediately recorded, income is deposited in a timely manner, and that designated reports are submitted as required under this Agreement. Contractor shall ensure that all expenditures are supported by appropriate vendor invoices. Contractor shall pay all proper bills and other expenses (other than those paid for by the City) incurred in the normal course of providing Catering and Concession Services at the Center.
13.6 Contractor’s Accounts Payable. The Contractor shall pay their vendors within 30 calendar days (or more, if permitted by the invoice) of the Contractor’s receipt of the deliverables or of the invoice, whichever is later. Contractor is responsible for payment of any late fees which will be a Non-Allowable Expense as defined herein.
13.7 Transporting Funds. Transport of funds between the Palm Springs Convention Center PSCC and any other City or non-City facilities should be performed under appropriate security. Cash deposits or transports in excess of one thousand dollars ($1,000) shall be transported in contracted armored car or by security as approved by the City. All transport of cash between locations must be made in locked transport bags or tamper-evident bags. Couriers will not have keys to locked transport bags; only the sending and receiving units will have keys.
13.8 Losses. If Gross Receipts are lost or stolen from the custody and control of Contractor, Contractor shall continue to be responsible therefore, and shall deposit in the bank designated by the City, from Contractor’s own funds, a like sum of monies within two (2) business days of discovery of the loss or theft. If the loss or theft, is insured or otherwise secured by Contractor, any payments made to the City by such insurance company, bonding company, or other, shall be reimbursed to Contractor to the extent of such insurance proceeds or security deposit. Any suspected criminal activity, including embezzlement or theft shall be reported to the City and proper law enforcement authorities.
13.9 Master Billing. If requested by a User and the City, Contractor may, in its sole discretion, but without obligation to do so, participate in the Master Billing process. If Contractor decides to participate in the Master Billing process, then for services rendered by Contractor pursuant to this Master Billing process, Contractor shall be required to submit to the City the following documentation:
A – Page 206 of 252
55575.38285\45131199.1
55575.38285\45119068.1
13.9.1 User shall execute and deliver to Contractor its standard form Catering Agreement, with only such changes as are acceptable to Contractor in its discretion.
13.9.2 Contractor shall complete the Credit Control Form provided by the Center.
13.9.3 Contractor shall bill the User by forwarding Contractor’s invoice to the City, for services provided to the User.
13.9.4 The City shall forward payment to Contractor once sufficient payment is received from the User. To the extent that payment from a User is delayed, uncollected, or uncollectible, such amount together with any costs of collection, settlement, or write off shall be considered a Direct Operating Cost.
13.10 Automated Financial Systems. Contractor shall have an operational financial system(s) (including corresponding software) which produces Financial Statements as required in Article 1.23, conforms to U.S. GAAP and includes annual line item budgeting for expenditures and revenue accounts, segregating and identifying assets, liabilities and net worth.
13.10.1 Such systems shall include processes to bill, collect and record all catering and concession revenues in a format acceptable to the City.
13.10.2 Failure to provide such automated financial systems shall be considered a material breach of this Agreement.
13.10.3 Notwithstanding anything else in this Agreement, Contractor is permitted to supplement registers that are not part of the integrated Point of Sale (POS) system based upon event needs and with prior written approval of the Facilities General Manager.
13.10.4 Upon request by the City, the Contractor shall provide complete documentation supporting all entries into the automated financial system including all invoices, payroll summaries and copies of payroll tax returns, revenue, bank deposit receipts, bank statements and all other related documentation.
13.10.5 Contractor to fund POS system which shall be paid from the Capital Investment.
13.11 Credit Cards. The Contractor and any POS system utilized by the Contractor must accept, at a minimum, bankcards (magnetic stripe bankcard, chip enabled-bankcard, contactless bankcard and PIN-less debit card), third- party and banknotes, and contain a 2D bar code/QR code scanner for reading codes from mobile phones, as well as the ability to accept
A – Page 207 of 252
55575.38285\45131199.1
55575.38285\45119068.1
validation/payment from a third-party application via cell phone or paper credential (example, Apple Pay, Google pay, etc.) from Users in payment for Contractor’s services.
13.11.1 Contractor is responsible for processing any credit card charges through its system and bank. Contractor shall provide credit card processing services, and the costs of such credit card
processing services are a Direct Operating Cost.
13.12 Budgets and Plans. The Contractor shall provide the Facilities General Manager with all budgets related to the Catering and Concession Services at the Center in formats acceptable to the Facilities General Manager. The City reserves the right to require the Contractor to submit budgets and/or plans more or less frequently, depending on the City’s budget process.
13.13 Operational Budget. The Operational Budget shall include, at a minimum, a projected income and expense statement including all income and line item expense items spread by Accounting Period, and by facility and an explanation of any variances. Contractor shall provide the Facilities General Manager, for approval, with an Operational Budget for the forthcoming Accounting Year, no later than thirty (30) calendar days after the Effective Date of this Agreement. Thereafter, Operational Budget must be submitted by Contractor in each subsequent year during the Term of the Agreement according to the following schedule:
13.13.1 The Facility General Manager will annually establish and communicate the due date for the preliminary operational budget for the forthcoming Accounting Year, which shall be no later than 45 days prior to the established due date.
13.13.2 The Facility Manager will annually establish and communicate the due date for the proposed operational budget for the forthcoming Accounting Year, which shall be no later than 45 days prior to the established due date. This operating budget shall be included as part of the Annual Sales and Marketing Plan submission (Article 13.17).
13.13.3 The due date for the summary of forecasted operational budgets for the four (4) years following the forthcoming Accounting Year, will be established and communicated to the Contractor, by the Center’s Contract Manager annually, no later than 45 days prior to the established due date.
A – Page 208 of 252
55575.38285\45131199.1
55575.38285\45119068.1
13.14 Financial Forecast. The Contractor must submit a financial forecast, within thirty (30) calendar days after each Accounting Period estimating revenue, expenses, and profit, for the current Accounting Year.
13.14.1 Explanations must be provided for any line items in which the estimated cost for the Accounting Year are projected to exceed the budgeted cost for the Accounting Year.
13.14.2 In the event that it appears reasonably likely, in any budget year hereunder, that the actual Net Profit will be smaller than projected in the Operational Budget for such Accounting Year, the City may request from the Contractor a plan for reduction of Direct Operating Costs to a level consistent with the budgeted net operating profit, provided that such plan does not materially interfere with the provision of the Catering and Concessions Services as provided for under this Agreement. The Contractor shall comply with any such expense reduction requested by the City set forth in Contractor’s plan for reduction of Direct Operating Costs, provided that such plan does not materially interfere with the provision of the Catering and Concessions Services as provided for under this Agreement.
13.15 Convention Center Smallwares Budget. The Contractor shall provide the Facilities General Manager, for approval, with an annual budget for the acquisition, replacement, or modification of the Smallware catering and concession equipment at the Facility no later than August 1, 2026.
13.15.1 Thereafter, and during the remaining term of the Agreement, the Facility Manager will annually establish and communicate the due date for the one (1) year Smallware equipment replacement budget, no later than 45 days prior to the established due date and in accordance with Article 13.2.2.
13.16 Annual Sales and Marketing Plan.
13.16.1 The initial Annual Sales and Marketing Plan is due by August 1, 2026.
13.16.2 For each Accounting Year thereafter, Contractor shall submit a draft Annual Sales and Marketing Plan on or before April 1 of each year preceding the beginning of the next Accounting Year for review, comment, and approval by the Facilities General Manager.
13.16.3 The final plan shall be submitted to the Facilities General Manager no later than July 15 preceding the beginning of the next Accounting Year.
A – Page 209 of 252
55575.38285\45131199.1
55575.38285\45119068.1
13.16.4 The Annual Sales and Marketing Plan shall be in a format provided by City and, at a minimum, include:
13.16.4.1 The proposed Operational Budget for the forthcoming year.
13.16.4.2 Marketing plans.
13.16.4.3 Proposed policy changes.
13.16.4.4 Proposed changes in management team or other
personnel.
13.16.4.5 Forecasts of income and expenses for each
Accounting Period during the Accounting Year.
13.17 In the first fiscal year initial funding for the Catering and Concessions Account will be provided by the Contractor to cover the amount of Net Losses for the first three (3) months of the Agreement.
ARTICLE 14. CONVENTION CENTER REPLACEMENT RESERVE FUND
14.16 General Requirements. Contractor shall transfer to the City from Gross Receipts for deposit into the Convention Center Replacement Reserve Fund an annual amount of $350,000. Such amount shall be paid on an equal monthly basis to the City out of Gross Receipts.
14.2 All Contractor purchases for expenditures reimbursable from the Convention Center Replacement Reserve Fund shall be subject to applicable state law and City requirements for the procurement of goods and services as outlined in Article 17.
14.3 At the end of each Accounting Year, any unexpended funds in these accounts shall remain in the applicable fund for the next Accounting Year and shall remain the property of the City.
14.4 With respect to the Convention Center Replacement Reserve Fund Contractor must submit a reimbursement request to the Facilities General Manager with such reasonable documentation (invoice, proof of payment, purchasing procedure used, etc.) as may be required by the Facilities General Manager for the fund expenditure.
14.4.1 The Facilities General Manager shall determine in his/her sole discretion whether good cause exists and will consider factors such as the original reason for the purchase, the reason for the late submittal or failure to obtain initial approval (i.e. Contractor attempted to contact Facilities General Manager but Facilities
A – Page 210 of 252
55575.38285\45131199.1
55575.38285\45119068.1
General Manager was unavailable), and any other factors the Facilities General Manager deems relevant. In the event Contractor fails to provide a justification to the reasonable satisfaction of the Facilities General Manager, the Facilities General Manager may deny the reimbursement request and the applicable expenditure shall be borne by the Contractor. The City shall not be liable for any fund expenditure not authorized in writing by the Facilities General Manager.
14.5 Convention Center Smallware Reserve Fund. Contractor shall determine each year, and reflect in the Operating Budgets, amounts to set aside for the Smallware Reserve Fund, which costs shall be Direct Operating Costs.
All purchases from this fund shall be in accordance with Section 17. Assets in this fund shall be used solely for acquisition, replacement, repair, and maintenance of equipment and small wares for the Catering and Concession Services.
14.5.1 Expenditures from this fund include, but are not limited to, cooking equipment, associated cost for installation of equipment, glassware, silverware, china, shelving racks, drink dispensers and non-disposable decor. Also includable are expenditures for equipment directly supporting the operations necessary to deliver catering and concessions products to the User, such as Enterprise Systems or Software solutions, display cases, cash registers, coin counters, security equipment for the cash office, and security equipment for Contractor’s Designated Areas.
14.5.2 Any operational supplies related to such equipment are considered a Direct Operating Cost and are excludable from expenditure from the Convention Center Smallware Reserve Fund. All small wares and equipment purchased by Contractor must be new; however, gently used small wares and equipment may be purchased for cost effectiveness, if the items purchased meet the level of quality required to provide superior customer service. Upon request by the City, or in the event the Contractor purchases new/different patterns or designs of china, glassware, flatware, etc., the Contractor shall provide the Facilities General Manager samples or pictures of the new/different items to be purchased for review and approval.
14.5.3 Contractor must receive prior written approval from the Facilities General Manager before each proposed expenditure and
include the basis for the acquisition, replacement, maintenance, or repair.
ARTICLE 15. FACILITIES GENERAL MANAGER RECORDS AND AUDIT
A – Page 211 of 252
55575.38285\45131199.1
55575.38285\45119068.1
15.1 Record Keeping and Retention. Contractor shall maintain a separate set of books and records for its operations at the Center, including alcohol operations, in accordance with applicable Law and Generally Accepted Accounting Principles (GAAP) of the United States of America. Contractor shall pay all costs and expenses connected with its operations when due.
15.1.1 The Contractor shall maintain itemized records of all Direct Operating Costs incurred and paid, including original invoices and sales records. Pertinent original sales records shall include, without limitation, the following:
15.1.2 Cash register tapes, including tapes from temporary registers.
15.1.3 Serially pre-numbered sales slips.
15.1.4 The original records of all mail and telephone orders at and to the Center.
15.1.5 Original records indicating that the merchandise returned by Users was purchased at the Center by such Users.
15.1.6 Memorandum receipts or other records of merchandise taken out on approval.
15.1.7 Detailed original records of any exclusions or deductions from Gross Receipts.
15.1.8 Sales tax records.
15.1.9 Such other sales records, if any, that would normally be examined by an independent accountant pursuant to Generally Accepted Accounting Principles (“GAAP”) in performing an audit of Contractor’s and Subcontractors’ sales.
15.2 The Contractor shall maintain all personnel files, payroll summaries, Catering and Concession Account deposit receipts and bank statements.
Contractor shall maintain full and accurate records of all operations and receipts, which records shall be in a form satisfactory to the Facilities General Manager.
15.3 The City or its authorized agents shall have the right to inspect such books or original entries and other related books, records or receipts, wherever located, at such reasonable times and as often as may be requested during the Term of this Agreement and, following the Term of this Agreement, for a period of three (3) years, or such further time as necessary to complete an audit should an audit last beyond three (3) years after the termination of this Agreement for any reason. Records must be kept on City facilities
A – Page 212 of 252
55575.38285\45131199.1
55575.38285\45119068.1
premises or at Contractor’s principle office or at some other location mutually agreeable to the parties.
15.4 Sales and Inventory Documentation. The Contractor shall keep complete and accurate inventory control records.
15.5 Annual Certified Audit. The City shall engage and pay the independent, certified auditor. Independent, certified audit reports of Contractor’s operations, performed by a Certified Public Accountant or firm, shall be dated by January 31st following each Accounting Year. The Certified Public Accountant or firm will submit the audit report to the Facilities General Manager.
15.615.5 The first audit report shall be dated by October 1, 2027, and the final audit report dated by October 1, 2031. Prior to the City’s review and approval of a selected auditor, the auditor must provide the firm’s latest peer review and agree to allow the City to conduct a follow-up peer review (upon completion of an audit) at the request of the City Auditor.
15.715.6 Contractor shall address any findings in the Annual Certified Audit and provide to the Facilities General Manager a written response to the findings and an action plan on how and when the findings will be remedied within thirty (30) calendar days of the release of the findings.
15.815.7 Policies and Procedures Manual. The Contractor, within sixty (60) calendar days of the Effective Date of the Agreement, shall have a Policies and Procedures Manual for its Catering and Concessions Services at the Center, and make it available to the Facilities General Manager upon request. The Contractor shall submit to the Facilities General Manager proposed changes in any policies or procedures promulgated by Contractor as part of the Annual Sales and Marketing Plan. Contractor shall operate the Catering and Concessions Services at the Center in accordance with the Policies and Procedures Manual. The Policies and Procedures Manual shall, at a minimum, address the following topics:
15.8.115.7.1 General operating procedures
15.8.215.7.2 Personnel policies
15.8.315.7.3 Employee job descriptions and guidelines
15.8.415.7.4 Procedures for alerting the City and Facilities General Manager to maintenance problems
15.8.515.7.5 Cleaning and Maintenance Schedules
15.8.615.7.6 Employee financial responsibilities
A – Page 213 of 252
55575.38285\45131199.1
55575.38285\45119068.1
15.8.715.7.7 Cash handling, credit card handling, reconciliation and refund procedures
15.8.815.7.8 Handling of non-standard transactions
15.8.915.7.9 Internal financial controls; the internal control structure shall be supported by a) the selection, training, and development of qualified personnel; b) an appropriate segregation of duties; c) appropriate Contractor management review and oversight; and d) the creation and dissemination of appropriate written policies and procedures.
15.8.1015.7.10 Audit procedures, including procedures for auditing each cashier at the end of each shift
15.8.1115.7.11 Inventory Procedures
15.8.1215.7.12 Acceptable computer and internet use policy
15.9 Other Audits. Contractor shall cause audits of its accounting procedures related to its operations at the Center under this Agreement to be performed by Contractor.
15.8 These audits shall be performed at least annually, at Contractor’s expenseas a Direct Operating Cost, and submitted with the following Accounting Period’s Financial Statements during each year of the Agreement. Upon completion of each such audit, the Contractor shall file with the Facility General Manager a written statement in a format approved by the Facility General Manager, stating when the audit was performed, the time-period covered by the audit, the scope of the audit, audit findings, conclusions and recommendations. The Contractor shall file a written response to the Facility General Manager, within thirty (30) calendar days, for actions to be taken by Contractor, and when, to correct any deficiencies or implement any necessary improvements.
15.9.215.8.2 As the Contractor performs periodic audits of equipment and Smallwares, the Contractor agrees to share such audit information with the City and Facilities General Manager.
15.1015.9 Compliance Reviews. The Contractor shall also be subject to periodic, unannounced compliance reviews of the Catering and Concessions Services at the Center by the Facilities General Manager or the Facilities General Manager’s designee. After completion of such operating reviews, the Contractor shall be notified by the Facilities General Manager of conditions needing correction or improvement. The Contractor shall
A – Page 214 of 252
55575.38285\45131199.1
55575.38285\45119068.1
promptly correct deficiencies in any such notice. Contractor shall provide written response to City within thirty (30) calendar days of completion of audit or audit report, including any corrective action plan and timelines to address any findings or deficiencies.
ARTICLE 16 INVENTORY
16.1 Inventory and POS Systems
16.1.1 The Contractor shall have purchased and installed at the Center and have operational, to the reasonable satisfaction of the Facilities General Manager, an automated inventory management system and an integrated point of sale system. Failure to provide the systems shall be considered a material breach of this Agreement.
16.1.1.1 POS System. The Contractor shall provide and support their own Point of Sale System for the duration of the Term of the Agreement. The Contractor and City shall discuss whether the POS System shall allow Users to place online orders.
16.1.1.1.1 The City desires and expects to have a fully integrated point of sale system and, in that
regard, will take steps to install a data line
connecting the Palm Springs Convention
Center at a cost funded solely by the City.
16.1.1.1.2 Within thirty (30) calendar days of installation of the data line and written notification from
the City or Facilities General Manager,
Contractor shall provide equipment and
training necessary to support connectivity
and reporting between Palm Springs
Convention Center.
16.1.1.1.3 The cost of the necessary equipment and
training will be considered a Direct
Operating Cost.
16.1.1.2 Inventory Management System & Periodic Inventory.
Contractor shall be responsible for retail inventory
accounting for all concession and catering operations
operated by Contractor.
16.1.1.2.1 Contractor is responsible for producing
reports that segregate between smallware
A – Page 215 of 252
55575.38285\45131199.1
55575.38285\45119068.1
type items and equipment items to ensure
completeness of asset tracking that
reconcile to the annual inventory.
16.1.1.2.2 Upon request, Contractor shall provide a
current inventory listing to the Facilities
General Manager.
16.1.1.2.3 Monthly Inventory. A monthly inventory of
all food and beverage items shall be
performed.
16.1.1.2.4 Post Event Inventory. An inventory for
Concession Services shall be performed at
each service location before and after each
event including any actual funds or cash
count of each event’s sales receipts, and a
sales report shall be prepared for each
event held at the Center.
16.2 Annual Inventory of Equipment and Smallwares. The Contractor shall complete and submit to the Facilities General Manager an annual physical inventory of the equipment and Smallwares, reconciled in an inventory system by November 30th of each year and upon termination or expiration of this Agreement. The City reserves the right to require the Contractor to conduct additional physical inventories.
16.2.1 The annual inventory shall be scheduled around event activity.
16.2.2 Contractor shall identify differences and any pertinent information related to the reconciliation differences.
16.2.3 If any equipment or more than 1% of all Smallwares are unaccounted for after such inventory, Contractor has sixty (60) calendar days from finalization of the inventory to produce missing equipment or unaccounted Smallwares or provide a written explanation and plan for replacement. The Facilities General Manager will determine the funding source based on written explanation and plan provided by the Contractor.
16.2.4 If the missing equipment and/or unaccounted Smallwares are due to the negligence or willful misconduct of Contractor; the cost of such replacement shall be borne solely by the Contractor.
16.2.5 The City shall own all title, right and interest in the equipment and Smallwares purchased by Contractor.
A – Page 216 of 252
55575.38285\45131199.1
55575.38285\45119068.1
16.2.6 During the year, as Contractor conducts cycle counts on the equipment and Smallwares; upon request, the results of such cycle counts shall be shared with the Facilities General Manager.
16.2.7 The City reserves the right to require the Contractor engage an independent qualified firm to conduct an annual inventory as a Direct Operating Cost.
16.3 End of Life Equipment. The Contractor shall identify any equipment that has met the end of its useful life and request written approval from the City to scrap such equipment subject to City’s recycling and property disposal policies.
16.4 Asset Tagging. The Contractor shall immediately make available upon receipt all assets with a life expectancy of one or more years, purchased with funds from the Convention Center Replacement Reserve Fund.
Equipment purchased shall be tagged according to City policy, incorporated herein as Exhibit “E”.
16.4.5 Equipment with a purchase price of $5,000 or more shall be tagged with a City of Palm Springs asset tag. Equipment with a price between $500 and $5,000 shall be tagged with an Palm Springs Convention Center tag. The City shall be responsible for the tagging the equipment in coordination with the Contractor.
The Contractor will internally track equipment with a purchase price of less than five thousand dollars ($5,000). Equipment shall not be used or deployed into service without the appropriate asset tag.
ARTICLE 17 PROCUREMENT
17.1 Direct Operating Purchases. Except as otherwise provided in this Agreement, Contractor is responsible for and has sole discretion as to the purchase of all food, consumable items, and related supplies. It is the Contractor’s responsibility to contain costs and maximize profit.
17.1.1 Contractor must have its own written procurement/cost containment policy in effect for items covered as Direct Operating Costs.
17.1.2 Upon request by the City or Facilities General Manager, the Contractor must submit a copy of its procurement/cost containment policy as well as written justification showing that purchases were made in compliance with the policy.
17.2 Purchasing Rules. This Section shall apply to all purchases from the Smallware Reserve Fund and the Convention Center Replacement Reserve Fund
A – Page 217 of 252
55575.38285\45131199.1
55575.38285\45119068.1
17.2.1 The Contractor and City shall develop procurement policies and procedures guidelines controlling the implementation of each procurement approved pursuant to the Palm Springs Municipal Code Chapter 7, Procurement and Contracting code, ordinances as well as any applicable City policies as directed by the City. These policies and procedures will be subject to approval by the City Procurement and Contracting Department, and Facilities General Manager. All procurement will follow these approved policies and procedures. The Contractor will undertake PSCC information technology functions, and maintain systems in state-of-the-art conditions.
17.2.2 At the conclusion of the term of the contract, the Contractor shall be responsible for returning the PSCC and Furniture, Fixtures and Equipment (FF&E) to the City in the same condition in which they were provided, except for normal wear-and-tear.
17.2.3 The Contractor shall abide by all applicable local, county, state, and federal laws pertaining to its operation and shall secure all licenses and permits necessary for the operation of the PSCC.
The Contractor shall be responsible for, and pay all federal, county, city and state taxes arising from sales made by the Contractor at the Center.
ARTICLE 18 SECURITY
18.1 Security for Designated Areas. Except as specifically set forth in this Article 18, Contractor is solely responsible for ensuring the security of all areas for which Contractor has exclusive rights and for all property within those areas.
Contractor shall not alter, make any additions to, or interfere with any security system, electronic alarm system, fire system, or video system without prior consultation and written approval of the City. Contractor shall not install or alter any physical doorways, rooms, or other areas of ingress and egress that would in any way limit the City’s access.
18.1.1 Security staffing in support of any event is the exclusive authority and responsibility of the Facilities General Manager. Contractor will not hire any security staff, including but not limited to uniformed security, or licensed police officers without prior consultation and written approval of the Facilities General Manager.
18.1.2 Security and safety of all persons, facilities and assets is a priority for the City. The City reserves the right to mandate minimum security staffing at any event or in any circumstances that the Facilities General Manager determines is necessary in his sole discretion.
A – Page 218 of 252
55575.38285\45131199.1
55575.38285\45119068.1
18.2 Access to Center. The Contractor shall exercise extreme caution and care with respect to the handling and use of access to the Center and access control devices provided by the City for entry to the Center. Contractor will immediately report any lost or missing control devices (including access cards, identification cards, temporary passes) to the City and will pay the City such fees and charges as are requested by the City for replacement of lost or destroyed control devices. Contractor shall be responsible for turning off all appropriate equipment and lights and locking all appropriate doors at the close of operations within the Center.
18.3 Security Policy. The Contractor shall adhere to and enforce all Facilities General Manager security policies and procedures. Contractor shall require all such personnel to utilize approved entrances and exits designated by the Facilities General Manager or his/her designee. Upon request, Contractor shall furnish a list of the names of Contractor’s Personnel and Contractor’s Employees and provide updates to said list of names to the Facilities General Manager monthly as changes occur.
18.3.1 The Contractor is required to obtain a certified criminal background report for all Essential Management Employees as identified in Section 11.4 and a fingerprint-based check for only those Essential Management Employees who have lived outside the state of California in the last ten years.
18.3.2 Upon receipt by the Facilities General Manager of Contractor’s list of Contract Personnel and the report described in Workforce Security Clearance and Identification (ID) Required Background Check of the Facilities General Manager’s Standard Terms and Conditions, the Facilities General Manager (through the Center’s Security Offices) will provide each of Contractor’s personnel a contractor ID badge that is required for access to City property that shall be worn at all times by Contractor’s Personnel during the execution of work.
18.3.3 The Contractor’s personnel will be required to wear the ID badge at all times while on the work site. Failure to wear or produce the ID badge may be cause for removal of an individual from the work site, without regard to Contractor’s schedule. Lost ID badges shall be reported to the Facility General Manager.
Contractor shall reimburse the Facilities General Manager for all costs incurred in providing additional ID badges to Contractor Personnel.
18.3.4 The Contractor is not required to obtain reports for delivery personnel, including but not limited to FedEx, UPS, Roadway, or other materials delivery persons, however all delivery personnel must present company/employer-issued photo ID and be
A – Page 219 of 252
55575.38285\45131199.1
55575.38285\45119068.1
accompanied by at least one of Contractor’s Personnel at all times while at the work site. The City reserves the right to deny entrance to anyone whose identification card or control device is determined to be under restriction or invalid.
18.3.5 The Contractor shall retain the reports and make them available for audit by the City during regular business hours.
Notwithstanding any provision to the contrary in this Article 18, it is understood and agreed that Contractor shall only be required to provide evidence (as opposed to actual background results) that it has performed the required background checks to the City for compliance with the requirements set forth in this Article 18.
18.4 Contractor’s Property. The Contractor is solely responsible for security for its fixtures, furnishings, equipment inventory and other personal property located in the Designated Areas.
18.5 Emergencies. In the event of fire, disturbance, actual or threat of violence, or any other emergency, Contractor will immediately notify the proper public safety authority or emergency service. Additionally, Contractor shall immediately notify the Facilities General Manager of such emergency by calling the Center’s 24-hour security dispatcher at the number supplied by the Facilities General Manager. Contractor shall ensure that all Contractor’s Personnel are trained to respond to fire, civil defense, bomb threats, evacuations, and other emergencies based on procedures established by Facilities General Manager. If Contractor becomes aware of any condition in the Catering and Concession Service Facilities that is unsafe or unhealthy, Contractor shall immediately notify the Facilities General Manager in writing. Contractor shall also advise Facilities General Manager, in writing, of whatever action Contractor has taken to remedy any safety hazard. Contractor, Contractor’s Personnel, Contractor’s agents or subcontractors agree to abide by and practice all state and local safety standards and regulations. Contractor shall take all reasonably necessary and proper precautions to protect the safety of Contractor’s Personnel and other persons and to protect all property from any damages from whatever cause.
18.6 Fire Damage. The Contractor shall give City and Facilities General Manager prompt notice followed by formal written notice of any fire damage occurring to the Center and a copy of all notices received by Contractor of any claim for bodily injury occurring at the Center.
ARTICLE 19. LICENSES AND PERMITS
19.3 Liquor Licenses. The Contractor or an affiliated entity shall acquire all licenses required for Contractor to legally sell and serve alcoholic beverages at the Center, as contemplated by this Agreement, by no later
A – Page 220 of 252
55575.38285\45131199.1
55575.38285\45119068.1
than September 15, 2026. All costs related to securing such licenses shall be part of Start-Up and Transition Costs, and costs related to renewing and maintaining such licenses, for full compliance with the California Department of Alcoholic Beverage Control (“ABC”), shall be a Direct Operating Cost. ABC rules and regulations and all operational aspects of the license, including without limitation, those costs associated with the Liquor Transition shall be deemed Direct Operating Costs. The Contractor covenants that it will defend and hold harmless the City and Facilities General Manager from and against any and all costs, losses, or liability, including without limitation payment of any fine or penalty or any cost of investigation or defense, resulting from Contractor’s purchase, handling sale or other disposition of alcoholic beverages at the Center or from Contractor’s failure to comply with any ABC requirements pertaining to the Center. The Contractor agrees that following termination of the Agreement for any reason, Contractor will sell its liquor licenses to the successor food and beverage provider for market value and proceeds shall go to the City, as License was purchased as part of the Start-Up Transition Costs, and shall cooperate with its successor as liquor licensee at the Center to affect a timely transfer of Contractor’s remaining inventory of alcoholic beverages at the Center to such successor licensee (which shall be purchased by such successor at Contractor’s cost therefor).
19.1.1 Except as provided above, the Contractor is responsible for paying for, obtaining and maintaining all appropriate licenses and permits, including, but not limited to the ABC license, required for the operation of its food and beverage services, the costs of which shall in all events be considered Direct Operating Costs. Copies of all operating licenses and license renewals shall be filed with the City.
19.1.2 If at any time Contractor is not permitted to sell alcoholic beverages at the Center due to a suspended or revoked ABC sale license, City shall have the right to suspend Contractor’s rights hereunder only with respect to the sale of alcoholic beverages which otherwise would be allowed under the
suspended or revoked license, so that Contractor shall continue to provide its Catering and Concession Services in all other respects. Contractor shall, within thirty (30) calendar days and at its sole cost and expense, retain a third party which is reasonably acceptable to City and which possesses all necessary alcoholic beverage licenses to operate pursuant to the terms of this Agreement any area requiring alcoholic beverage service until Contractor shall have reinstated or obtained substitute liquor licenses.
19.1.3 The City agrees to provide, in a timely fashion, information in its possession that Contractor needs in order to complete its
A – Page 221 of 252
55575.38285\45131199.1
55575.38285\45119068.1
application for the new liquor licenses and also agrees to cooperate with Contractor in its efforts to obtain said licenses.
City shall ask the current liquor license holder at the Center to cooperate with Contractor and/or its designated affiliate in the transition of alcoholic beverage sales operations at the Center including, but not limited to, the submission of its liquor license to the ABC for voluntary cancellation or suspension in sufficient time to allow ABC to issue new liquor licenses to Contractor or its designated affiliate by no later than July 1, 2026. By agreeing to provide information and to cooperate with Contractor, City in no way assumes liability for Contractor’s failure to comply with the requirements of this Article 19, it being at all times the responsibility of Contractor to obtain the necessary licenses.
19.2 Retention of Liquor License. In the event Contractor, or another entity that has contracted with Contractor to hold the alcoholic beverage license for sales at the Center is found to manage the Catering and Concession Services in a manner in violation of the State law or applicable regulations concerning alcoholic beverages, as determined by the ABC, Contractor shall do all things necessary to retain or regain such license or status, or to ensure that the other entity it has contracted with, if applicable, retains or regains such license or status at no cost to the City.
19.3 Other Permits and Licenses. The Contractor and any subcontractor involved in the Catering and Concession Service operations, shall procure and keep in force during the term of this Agreement, all permits and licenses required by law to conduct Catering and Concession Services at the Center and provide copies of such permits and licenses to City within ten (10) business days of receipt.
19.3.1 Nothing contained herein shall be construed as binding the City to the issuance of any license or permit needed by Contractor or any subcontractor to enable anyone to provide Catering and Concession Services hereunder.
19.3.2 In the event of termination or expiration of this Agreement by either party, and upon expiration hereof, it is mutually understood and specifically agreed that any and all permits or licenses issued by City for Catering and Concession Service operations at the Center shall be canceled without further notice or hearing.
ARTICLE 20. COMPLIANCE WITH LAWS AND REGULATIONS
20.1 Laws, Statutes, and other Governmental Regulations. Contractor agrees to comply with all applicable laws, statues, ordinances and other governmental regulations prevailing during the term of this Agreement, and Contractor will not
A – Page 222 of 252
55575.38285\45131199.1
55575.38285\45119068.1
suffer or permit to be done anything on the premises of the Center in violation of any such laws, ordinances, rules or regulations.
ARTICLE 21 MISCELLANEOUS
21.1 Significant Event by the Contractor. As used in this provision, a “Significant Event” is any occurrence or expected occurrence which is reasonably expected to have a material effect upon the Contractor’s ability to meet its contractual obligations under this Agreement.
21.1.1 The Contractor shall immediately notify the City and Facilities General Manager of any current or prospective “Significant Event” on an ongoing basis.
21.1.2 All notifications shall be submitted in writing to the City Facilities General Manager.
21.1.3 Significant Events may include but not be limited to the following:
21.1.3.1 Disposal of major assets by Contractor.
21.1.3.2 Failure by Contractor to perform annual inventory of equipment as specified in Article 16.2.
21.1.3.3 Failure by Contractor to produce financial documents as defined in Article 13.
21.1.3.4 A major computer software conversion, enhancement or modification to the operating systems, security
systems, and application software, engaged by
Contractor and material to performance by Contractor
of its duties pursuant to this Agreement.
21.1.3.5 A significant termination of a supplier of Contractor used by Contractor at the Center, without adequate
replacement.
21.1.3.6 Contractor’s insolvency or the imposition of, or notice of the intent to impose, a receivership, conservatorship or special regulatory monitoring, or any bankruptcy
proceedings, voluntary or involuntary, or
reorganization proceedings.
21.1.3.7 Strikes, slow-downs or substantial impairment of the Contractor’s facilities by labor used in the performance of this Agreement.
A – Page 223 of 252
55575.38285\45131199.1
55575.38285\45119068.1
21.1.3.8 Reorganization, reduction and/or relocation in Key personnel of Contractor material to Contractor’s
performance of this Agreement, rendering Contractor
unable to continue performance.
21.1.3.9 Sale or merger of substantially all of Contractor’s assets.
21.1.3.10 Onsite (at the Center) or external (but pertaining to the Center) contact by any governmental agency (Federal,
State, County, or City) having regulatory or law
enforcement authority over Contractor or Contractor’s
Personnel in an official capacity regarding any criminal violations, official inquiries, actual or potential
enforcement action or investigation in all instances
relating solely to Contractor’s activities at the Center.
21.2 Rights and Duties Upon Termination. The following provisions shall apply in the event of a termination of this Agreement for any reason whatsoever.
21.2.1 Delivery of Premises. Contractor shall remove its property from the Center and shall deliver to the City the premises and good title to all property for which full repayment to the Contractor has occurred or which otherwise belongs to the City, free and clear of all liens and encumbrances and in such condition as at the beginning of the Agreement, excepting (i) ordinary wear and tear; (ii) loss or damage occurring without the primary negligence or fault of Contractor; or (iii) damage occurring as a result of fire, flood, or other unavoidable casualty or occurrence occurring without primary negligence of the Contractor.
21.2.2 Final Accounting. Contractor shall deliver to the City, within sixty (60) calendar days of the date of termination, a final accounting and all amounts owed to the City as of the date of termination.
21.2.3 Catering and Concessions Products and Supplies. Novelties.
Contractor shall submit to the City, within twenty (20) calendar days of the date of termination, a schedule of all usable food and beverage products and supplies and novelties held by the Contractor on the date of termination for use or sale in it Catering and Concession Services.
21.2.4 Surrender of Liquor License. Contractor shall surrender its alcoholic beverage license at the time this Agreement is
A – Page 224 of 252
55575.38285\45131199.1
55575.38285\45119068.1
terminated in accordance with the terms and conditions set forth in Agreement.
21.3 Non-Suspension or Debarment Certification. The City is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Palm Springs contracts. By accepting a contract with the City, the Contractor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of California, or the City of Palm Springs.
21.4 Consistent Tax Positions. Contractor agrees that (a) it is not entitled to and will not take any tax position that is inconsistent with being a service provider to the City with respect to the Facilities and (b) it will not claim any depreciation or amortization deduction on its tax returns, investment tax credit, or deduction for any payment as rent with respect to the Facilities.
21.5 Unique (Cultural) catering requirements of the PSCC clients, such as Kosher, Hallal, Indian and other ethnic foods, not regularly prepared by the Contractor, may be excluded from these rights, if so directed by the Facilities General Manager.
21.6 The Contractor will manage all food retail outlets, however City desires local purveyors and restaurants to be represented in the food service operations.
21.7 Contractor is encouraged to work with local not-for-profit organizations, such as food banks to reduce product waste.
ARTICLE 22.Prior to the Effective Date, City shall, at no cost to Contractor, provide for use by Contractor a reasonably turnkey operation for the provision of the Services, equipped with equipment, required by Contractor to provide the Services at the level required by this Agreement
ARTICLE 23.ARTICLE 22.For Payment Card Industry Data Security Standards (“PCI- DSS”) compliance purposes, City will provide, on a segmented network, an appropriate number (as mutually agreed by the Parties) of wired data connections to the Internet for Contractor’s Point of Sale (“POS”) devices, upon mutual agreement of the Parties. City shall have the option to provide a PCI wireless connection to POS terminals upon mutual agreement of the Parties. City shall be responsible for the security of its network, including, without limitation, applicable PCI-DSS compliance. To the extent provided for in the Investment, Contractor shall be responsible for procuring and installing POS payment systems that are compliant with the latest PCI-DSS requirements. A POS payment system may include, but is not limited to, POS terminals, payment card swipers, on-premises
A – Page 225 of 252
55575.38285\45131199.1
55575.38285\45119068.1
servers, and additional network hardware. Contractor shall be responsible for the PCI-DSS compliance of its POS systems.
ARTICLE 24.ARTICLE 23.Each Party shall comply with all applicable data protection and privacy laws in connection with the collection, processing, and use of Personal Data. The parties shall implement appropriate technical and organizational measures to safeguard Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, or damage. For purposes of this Agreement, “Personal Data” means any information processed by Contractor on behalf of the City that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, with an identified or identifiable individual, including but not limited to names, email addresses, phone numbers, device or location data, and payment information, and any other data protected under applicable privacy or data protection laws.
ARTICLE 25.ARTICLE 24.City represents and warrants that it is the owner of the Center, and that it has the full right and legal authority to enter into this Agreement and to grant the rights and perform the obligations of City herein, and that no other third-party consent or approval is required to grant such rights or perform such obligations hereunder.
A – Page 226 of 252
55575.38285\45131199.1
55575.38285\45119068.1
ARTICLE 25.Minor Modifications. The provisions of this Agreement require a close degree of cooperation between the parties and “Minor Changes” to this Agreement may be required from time to time. “Minor Changes” mean changes to this Agreement that do not result in a change to the Compensation Section (except for the definition of Consumer Price Index which shall be considered subject to Minor Changes) in effect on the execution date. Accordingly, the parties may mutually agree they will cooperate in good faith to make “Minor Changes” to this Agreement to be evidenced by their approval and execution of an “operating memorandum” reflecting such Minor Changes to the extent permitted by Applicable Law: 25.6.1 Neither the Minor Changes nor any Operating Memorandum shall require public notice or hearing. 25.6.2 The City Attorney and City Manager shall be authorized to determine whether proposed modifications and refinements are “Minor Changes” or more significant changes requiring amendment of this Agreement. 25.6.3 The City Manager may execute any Operating Memorandum without City Council action and provide notice to the City Council.
A – Page 227 of 252
55575.38285\45131199.1
55575.38285\45119068.1
EXHIBIT “B”
SCHEDULE OF COMPENSATION
A – Page 228 of 252
55575.38285\45131199.1
55575.38285\45119068.1
The following is an example of the Parties’ intent of how Gross Receipts and Net Profit shall be shared by the Parties.
Each Party shall take a commission of 7.5% of Gross Receipts.
Gross Receipts deductions shall include (a) the 7.5% commission paid to each Party, (b) Direct Operating Costs, (c) Capital Replacement/Reserve (i.e. $350,000 per year).
The balance is Net Profits and shall be split 85% to the City and 15% to Contractor.
ITEM DESCRIPTION Percentage (Rate)
1 Capital Replacement/Reserve Amount (over contract
Term)
$1,750,000
2 Capital Replacement/Reserve Amortization over 5 years $350,000 3 Gross Receipts Commission to City 7.5%
4 Gross Receipts Commission to Contractor 7.5%
ITEM DESCRIPTION Percentage (Rate)
of Net Profit
1 Net Profit to City (Level 1 = Below $5,000,000) 85%
2 Net Profit to Contractor (Level 1 = Below $5,000,000) 15% 3 Net Profit to City (Level 2 = $5,000,000+1 to
$10,000,000)
85%
4 Net Profit to Contractor (Level 2 = $5,000,000+1 to
$10,000,000)
15%
5 Net Profit to City (Level 3 = above $10,000,000+1) 85% 6 Net Profit to Contractor (Level 3 = above $10,000,000
+1)
15%
A – Page 229 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 230 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 231 of 252
55575.38285\45131199.1
55575.38285\45119068.1
EXHIBIT “C”
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any Contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The Contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the Contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
A – Page 232 of 252
55575.38285\45131199.1
55575.38285\45119068.1
EXHIBIT “D”
BUY-OUT FEE SCHEDULE
Sample Buyout Package
Catering Buy-Out-Fee: $109Fixed amount per guest++ per event hosted, or flat fee per event. - Food Services Minimum must be met to waive rental fees for contracted dining space Catering Buy-Out-Fee includes:
- All China, Glassware, Silverware, Salt & Pepper, Sugar Caddy for each table, Water Services
- Standard Napkin and Table Linen for 72” round tables provided by Convention Center Outside Caterer to provide food and non-alcoholic beverage for the event Outside Caterer to provide Chafing Dishes and Utensils for service. - These items may be rented by the Contractor if caterer is unable to provide.
Required in addition to the Buy-Out-Fee:
- Service staff at current Contractor rates (Levels are negotiable if supplemented by outside caterer staff)
- Proper insurance coverage from outside caterer listing Neon Palm Provisions & Co. and Contractor as additional insured.
Available add-ons to your Buy-Out-Fee package:
- Coffee services for dessert
- Bar services
Kitchen and storage space usage
A – Page 233 of 252
55575.38285\45131199.1
55575.38285\45119068.1
EXHIBIT “E”
CAPITAL ASSET POLICY
A – Page 234 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 235 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 236 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 237 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 238 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 239 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 240 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 241 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 242 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 243 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 244 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 245 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 246 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 247 of 252
55575.38285\45131199.1
55575.38285\45119068.1
A – Page 248 of 252
55575.38285\45131199.1
A – Page 249 of 252
ATTACHMENT B
Public Integrity Disclosure
A – Page 250 of 252
114
This document and its terms and conditions constitute confidential and proprietary information of Oak View Group and its affiliates and shall be maintained as confidential. This document or its contents may not be disclosed to any third party, without the express written consent of Oak View Group.
CITY OF PALM SPRINGS – PUBLIC INTEGRITY
DISCLOSURE
APPLICANT DISCLOSURE FORM
(Revised 05/16/19)
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principle Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other than California, is the Entity also registered in California? Yes No
5. Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note:
If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Officer Director Member Manager
[name]
General Partner Limited Partner
Other
[name]
Officer Director Member Manager
[name]
General Partner Limited Partner
Other
Ovations Fanfare L.P. d/b/a OVG Hospitality
5050 S. Syracuse St., Suite 800, Denver, CO 80237
California
X
75702 Varner Rd, Palm Desert, CA 92211
Ovations Food Services, L.P.
Ovations Food Services, L.L.C.
Brian Rothenberg, President & Secretary, Ovations Food Services, LLC X
Officer Director Member Manager
X
General Partner Limited Partner
Other
X
Kenneth Gaber, Vice President, Ovations Food Services, LLC Officer
A – Page 251 of 252
115
This document and its terms and conditions constitute confidential and proprietary information of Oak View Group and its affiliates and shall be maintained as confidential. This document or its contents may not be disclosed to any third party, without the express written consent of Oak View Group.
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity Ovations Food Services, LP
[name of owner/investor] [percentage of beneficial interest in entity 99% LP, Ovations Food Fanfare, LP
A.
Spectra US, LLC 99% - Ovations Food Services, LP
B.
Spectra Finance, LLC 100% - Spectra US, LLC
and name of entity]
C.
Spectra Holdings II, LLC 100% - Spectra Finance, LLC
100% - Spectra Holdings II, LLC OVG Spectra Holdco, LLC E.
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date
PENALTIES
Falsification of information or failure to report information required to be reported may subject you to administrative action by the City.
April 21, 2026
Brian Rothenberg, EVP & General Counsel
OVG Business Services, LLC 100% -OVG Spectra Holdco, LLC D.
OVG Business Services Intermediate Holdings, LLC 100% - OVG Business Services, LLC Oak View Group, LLC
OVG Holdings, LLC
OVG Business
Services Holdings, LLC
100%- OVG Business Services
Intermediate Holdings, LLC
100% - OVG Business Services
Holdings, LLC
100% Oak View Group
A – Page 252 of 252