And to: White Brenner LLP
1414 K Street, 3rd Floor
Sacramento, California 95814
Attention: Douglas L. White, Esq.
If to Consultant: Simply Devine Events, LLC
839 Spring Creek Dr.
Ripon, Ca. 95366
Attention: Tamra Spade, Consultant
Section 19. General Terms and Conditions.
19.1. Modification. No alteration, modification, or termination of this Agreement shall be valid unless made in writing and executed by all of the Parties to this Agreement.
19.2. Waiver. Any waiver at any time by either Party hereto of its rights with respect to a breach or default, or any other matter arising in connection with this Agreement, shall not be deemed to be a waiver with respect to any other breach, default or matter.
19.3. Assignment. No Party to this Agreement shall assign, transfer, or otherwise dispose of this Agreement in whole or in part to any individual, firm, or corporation without the prior written consent of the other Party. Subject to the forgoing provisions, this Agreement shall be binding upon, and inure to the benefit of, the respective successors and assigns of the Parties hereto.
19.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California.
19.5. Venue. Venue for all legal proceedings shall be in the Superior Court of California for the County of Stanislaus.
19.6. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
19.7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
19.8. Severability. If any term, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, the remainder of this Agreement shall remain in effect.
19.9. Audit. City shall access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant’s charges to City under this Agreement.
19.10. Document Preparation. This Agreement will not be construed against the Party preparing it, but will be construed as if prepared by all Parties.
Performance Agreement
City of Riverbank and Simply Devine Events, LLC
19.11. Entire Agreement. This writing constitutes the entire agreement between the Parties relative to the services specified herein, and no modifications hereof shall be effective unless and until such modification is evidenced by a writing signed by both Parties to this Agreement. There are no understandings, agreements, conditions, representations, warranties or promises with respect to the subject matter of this Agreement except those contained in or referred to in this Agreement.
19.12. Headings Not Controlling. Headings used in this Agreement are for reference purposes only and shall not be considered in construing this Agreement.
19.13. Time is of the Essence. Time is of the essence in this Agreement for each covenant and term of a condition herein.
19.14. Term Includes Extensions. All references to the Term of this Agreement shall include any extensions of such Term.
19.15. Other Documents. The Parties agree that they shall cooperate in good faith to accomplish the objectives of this Agreement and to that end, agree to execute and deliver such other instruments or documents as may be necessary and convenient to the fulfill the purposes and intentions of this Agreement.
19.16. Authority. All Parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement and the names, titles and capacities herein stated on behalf of any entities, persons, states or firms represented or purported to be represented by such entities, persons, states or firms and that all former requirements necessary or required by the state or federal law in order to enter into this Agreement had been fully complied with. Further, by entering into this Agreement, neither Party hereto shall have breached the terms nor conditions of any other contract or agreement to which such Party is obligated, which such breach would have a material effect hereon.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Consultant and City as of the date of the Agreement set forth above.
CITY:
City of Riverbank, a municipal corporation
of the State of California
By: _________________________________
Marisela H. Garcia, Interim City Manager
Date Signed:
Performance Agreement
City of Riverbank and Simply Devine Events, LLC
Approved as to Form:
By:
Tom Hallinan, City Attorney
Attest:
By:
Kathy L. Teixeira, Interim City Clerk
Consultant:
Simply Devine Events, LLC
By:
Sharon Silva, Consultant
Tamra Spade, Consultant
Date Signed:
Exhibit B
Scope of Services
2022 Riverbank Cheese & Wine Festival
Consultant shall perform the work set forth as follows:
Plan, Coordinate and implement all aspects of the 45th Riverbank Cheese & Wine Festival
Use various forms of publicity including but not limited to social media, banners, news articles and radio announcements to increase awareness of the Festival in a timely manner
Recruit, communicate effectively with, and handle set up and take down of all vendors
Seek Sponsorships and donations to increase sources of revenue for the event.
This includes Beer Sponsors, Wine, and Cheese donations. Arrange for all rental equipment such as golf carts, generators, barricades, portable restrooms, fencing party rentals and all other equipment necessary for a successful event
Arrange for all deliveries, set up, clean up and take down of all equipment. Set up all professional services, sub-contracts and labor necessary to implement the Festival. This includes but is not limited to a security company, electrician, sound/stages, Entertainment, DJ Services
Arrange for and monitor ticket sales for the Wine Tasting component of the Festival.
Order Wine Glasses, recruit wineries, and schedule volunteers or labor needed to produce a well- organized, well supervised and successful wine and cheese tasting experience for attendees.
Provide an opportunity for community involvement for our schools and non-profit organizations to participate in the Festival and where possible generate funds for their organizations.
Ensure all ABC license requirements are met and monitored in all areas of the event.
Work with City staff and obtain support and technical assistance as needed. Hold monthly meetings to update the Parks and Recreation Director and staff of Festival planning, challenges encountered and financial status both of revenue and expenses.
Meet with Fire Department, Police Chief, and Security Personnel to review security requirements and Emergency Action Plan.
Work closely with the City Parks Supervisor and Public Works Supervisor for street closure information, notifications, fire lanes, instructions and placement of fencing, concrete barriers and post Festival clean up.
Create a map of the Festival Boundary and present an update to the City Council on event planning status in a few months prior to the Festival. Communicate with businesses and residents well in advance and throughout the planning stages of the Festival and during the Festival. Hold at minimum two meetings with the downtown businesses to listen to their concerns regarding the Festival.
The City will provide the following Services:
Assistance retaining current sponsorships
Information learned from operating the Festival for the past 7 years Street Closure prior to event, and street clean up and re-opening Assistance with maps, fire clearances, permits as needed Mailing lists
Administrator rights to the Cheese & Wine Website and Facebook Tent Donations from Gilton and in-kind services that they provide to the City Part time staff as needed for custodial at the Community Center or the Antigua Rental venue to be reimbursed at an agreed upon rate.
Item 11.5 - CC / LRA 04/12/2022
RIVERBANK CITY COUNCIL / LOCAL REDEVELOPMENT AUTHORITY
AGENDA ITEM NO. 11.5
SECTION 11: NEW BUSINESS
Meeting Date: April 12, 2022
Subject/ Title: A Resolution 2022-___ authorizing the Mayor to Execute a Lease with Simply Devine Events, LLC for the Area Associated with the Riverbank Cheese and Wine Festival
From: Marisela H. Garcia, Interim City Manager
Submitted by: Sue Fitzpatrick, Director of Parks and Recreation
RECOMMENDATION
Motion to adopt Resolution 2022-___ authorizing the Mayor to enter into a lease agreement with Simply Devine Events, LLC in conjunction with Simply Devine Foundation (501c3) for the area associated with the Cheese and Wine Festival held October 8, and October 9, 2022.
SUMMARY
The City of Riverbank (“City”) plans to hold the 45th Annual Cheese and Wine Festival (“Festival”) on October 8, and 9, 2022. The City has entered into an agreement with Simply Devine Events, LLC to provide event coordination for the Festival. In furtherance of the agreement with Simple Devine Events, LLC, City staff proposes that the City enter into a lease agreement with Simply Devine Events, LLC to temporarily lease the property upon which the festival will be held on October 8, 2022 and October 9, 2022.
The resolution, if adopted, will authorize the Mayor to execute a lease agreement with Simply Devine Events, LLC.
BACKGROUND
The city has organized the festival for a number of years and has previously worked with Simply Devine Events, LLC. The increased interest requires that Simply Devine Events, LLC and the City have more flexibility in managing the area and streets where the festival will be held. The lease agreement does not charge rent to Simply Devine Events, LLC for
Item 11.5 - CC / LRA 04/12/2022
the two-day lease but instead provides the City and Simply Devine Events, LLC with safeguards in the form of insurance requirements and other provisions for providing a Festival that serves the residents of the City and the greater community at large who may wish to attend the Festival. This will ensure that the Festival continues to be a successful and enjoyable activity that brings City residents and visitors from near and far to City events.
FINANCIAL IMPACT
There is no direct cost to the City in entering into the lease agreement. The City has already entered into a separate agreement with Simply Devine Events, LLC for services.
ATTACHMENT
1. Draft City Council Resolution 2022-
2. Lease Agreement
CC/LRA – 04/12/2022
CC Resolution 2022-
CITY OF RIVERBANK
RESOLUTION 2022-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RIVERBANK,
CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT
WITH SIMPLY DEVINE EVENTS, LLC IN CONJUNCTION WITH SIMPLY DEVINE FOUNDATION (501C3) FOR THE RIVERBANK CHEESE AND WINE FESTIVAL WHEREAS, the City has previously entered into a contract with SS Consulting to provide event coordination for the 2020 annual Cheese and Wine Festival; and WHEREAS, on April 27, 2021, the Riverbank City Council approved an agreement with Simply Devine Events, LLC, formerly SS Consulting, to Coordinate the 2021 Cheese & Wine Festival; and
WHEREAS, in furtherance of the partnership between the City of Riverbank and Simply Devine Events, LLC, the City desires to temporarily lease City-controlled property to Simply Devine Events, LLC Consulting for the Cheese and Wine Festival time period of October 8, 2022 through October 9, 2022; and
WHEREAS, pursuant to Government Code Sections 37380(a) and 40602(b) the City may lease property it owns or controls through an agreement signed by the Mayor.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Riverbank hereby authorizes the Mayor of the City to execute an agreement, hereto as Exhibit A, with Simply Devine Events, LLC to lease the property upon which the Cheese and Wine Festival for the time period of October 8, 2022, through October 9, 2022.
PASSED AND ADOPTED by the City Council of the City of Riverbank at a regular meeting held on the 12th day of April, 2022; motioned by Councilmember __________, seconded by Councilmember _________, and upon roll call was carried by the following City Council vote of ___:
AYES:
NAYS:
ABSENT:
ABSTAINED:
ATTEST: APPROVED:
__________________________ ___________________________
Kathy L. Teixeira Richard D. O’Brien
Interim City Clerk Mayor
Attachment: Exhibit A - Copy of Lease Agreement with Simply Devine Events, LLC
LEASE AGREEMENT
City of Riverbank and Simply Devine Events, LLC
TEMPORARY LEASE AGREEMENT
THIS TEMPORARY LEASE AGREEMENT (the “Lease”) is made and entered into on this 12th day of April 2022, by the City of Riverbank, a California municipal corporation (the “City”), and Simply Devine Events, LLC in conjunction with Simply Devine Foundation 501c-3).
City and Lessee shall be referred to herein individually as “Party” and collectively as the “Parties”.
There are no other parties to this Lease.
RECITALS
A. City desires to lease to Lessee certain real property, including any and all improvements, in the City of Riverbank, County of Stanislaus, State of California that will be used in conjunction with the services Lessee has agreed to provide for the Riverbank Cheese and Wine Festival, the scope of which is described in the Performance Agreement the City and Lessee entered into on April 12, 2022 and is attached hereto as Exhibit A (the “Property”); and B. City, as a municipal corporation, may lease property it owns or controls pursuant to Government Code section 37380(a); and
C. Lessee desires to lease the Property from the City for uses related to the Riverbank Cheese and Wine Festival; and
D. This Lease does not involve a public project as defined in Public Contract Code section 20161, and does not require bidding pursuant to Public Contract Code section 20162.
NOW, THEREFORE, with reference to these recitals and on the terms and conditions contained in this Lease, City agrees to lease the Property to Lessee on the following terms and conditions:
AGREEMENT
Section 1. Recitals. The recitals above are true and correct and are hereby incorporated into and made part of this Lease by this reference. In the event of any inconsistency between the recitals and Sections 1 through 20 of this Lease, Sections 1 through 20 shall prevail.
Section 2. Effective Date. This Lease and all of its provisions shall become effective once it is executed by all of the Parties (the “Effective Date”).
Section 3. Term of Lease. The term of this Lease shall be for a period of two (2) days (“Term”) commencing at 6:00 a.m. October 8, 2022 and expiring 11:59 p.m. October 9, 2022 (“Expiration Date”). Either Party may terminate this Lease prior to the Expiration Date by providing the other Party written notice of the intent to terminate at least thirty (30) calendar days in advance of any early termination date.
Section 4. Condition of the Property. Lessee acknowledges and agrees that the Property is to be leased to Lessee in an “as is” condition with all faults. City does not make any representations
LEASE AGREEMENT
City of Riverbank and Simply Devine Events, LLC
or warranties of any kind whatsoever, either express or implied, with respect to the Property, its suitability for Lessee’s Intended Use (as defined below) or use of the Property or any such related matters. Lessee agrees with and represents to City, that the Property has been inspected by it and that the Lessee has been assured by means independent of City or City’s agents of the truth of all facts material to this Lease and that the Property is being leased by Lessee as a result of its inspection and investigation and not of a result of any representations made by City and City’s agents.
Section 5. Permitted Uses of the Property. Lessee shall use the Property for activities related to the annual Riverbank Cheese and Wine Festival as detailed in Exhibit A. (the “Intended Use”). Lessee shall only use the Property for the purposes provided herein or uses that are incidental, supporting and compatible with the uses provided herein.
Section 6. Changes in Permitted Uses. If Lessee desires to change the use of the Property to another use or uses, or add another use, such change in use shall require the prior written approval of the City.
Section 7. Compliance with Laws. Lessee shall promptly comply with all laws and with the requirements of any governmental authority having jurisdiction over Property, including but not limited to: the federal government, the state of California, the County of Stanislaus, all ordinances of the City, and all rules and regulations of the police and fire departments or other municipal authorities of the County of Stanislaus or the City that have authority over the premises. Lessee’s compliance may include the obligation to make improvements, repairs, and alterations on the Property whether such compliance was foreseen or unforeseen. Lessee shall immediately furnish City with a copy of any notices received from any governmental agency, financial institution, insurance company, or inspection bureau pertaining to or in connection with the Premises.
Section 8. City’s Access to Property. City or City’s agents, representatives or employees retain the right to enter the Property at all reasonable times to determine whether Lessee is complying with the terms of this Lease, to perform any other obligation of Lessee after Lessee’s failure to perform same, if Lessee defaults under this Lease, and for the purpose of doing other lawful acts that may be necessary to protect the City’s interest in Property. City shall be permitted to enter on the Property, as may reasonably be necessary, in order to make improvements or do other work, or to make improvements, repairs, or maintenance to adjacent property owned by City.
Nothing in this section shall imply any duty on the part of the City to make any inspection or take any action related to the Property.
Section 9. Assignment and Subleasing. Lessee shall not assign, transfer or encumber this Lease or any interest herein without the prior written consent of City. Lessee shall not sublease all or any part of the Property or allow any persons other than Lessee’s agents, subcontractors or employees to use all or part of the Property without the prior written consent of City. City’s consent to one assignment, sublease, occupations, or use by another person shall not be deemed to be a consent to any subsequent assignment, sublease or occupation or use by any other person.
Any assignment or sublease without the prior written consent of City shall be void. City shall have the right to assign or transfer all or any part of this Lease or any rights to it at any time without Lessee’s consent.
LEASE AGREEMENT
City of Riverbank and Simply Devine Events, LLC
Section 10. Insurance Coverage. Lessee, and any and all of Lessee’s subcontractors, shall at all times during the Lease Term maintain and keep in force insurance coverage with an insurer approved by City which will adequately protect City against liability and property damages upon the Property. The minimum coverage required by this section shall be liability insurance for two million dollars ($2,000,000.00) per injury or occurrence. Proof of the insurance coverage obtained by Lessee shall be given to City at least thirty (30) calendar days before the Lease Term commences in the form of a Certificate of Liability issued by the insurer.
Such insurance shall also:
A. Name City and its officers, employees, agents and representatives, as additional insured by endorsement with respect to the performance of this Lease. This coverage shall contain no special limitation on the scope of its protection afforded to the aforementioned additional insured.
B. Be primary with respect to any insurance or self-insurance programs covering City and its officers, employees, agents, and representatives.
C. Contain standard separation of insured provisions.
Section 11. Indemnification of City. Lessee shall indemnify, hold harmless and defend City and City’s officials, employees, agents, representatives and contractors from all liability associated with the Property or Lessee’s operations, business, conduct, or management of the Property, or any act, omission, or negligence of Lessee or any other Lessee’s representatives, subcontractors or invitees, pertaining to this Lease and the use of the Property contemplated herein. This indemnification shall extend and protect City against any liability, claim, suit, action or other proceeding for damage of any kind relating to the Property, directly or indirectly, allegedly suffered, incurred, or threatened including: personal injury, death, property damage, inverse condemnation, or any combination of these, regardless of whether or not such liability, claim or damage was foreseeable by City or Lessee prior to execution of this Lease.
Section 12. Termination of Lease and Remedies. In the event of any default by Lessee, in addition to any and all other rights and remedies available to City at law or in equity, City shall have the right to immediately terminate this Lease and all rights of Lessee hereunder by giving written notice to Lessee of such election by City, in the manner provided in Section 17 of this Lease. If City shall elect to terminate this Lease, then it may recover any amount permitted under California law.
Section 13. Remedies Cumulative. All rights and remedies under this Lease shall be nonexclusive of and in addition to any other remedy available at law or in equity.
Section 14. Destruction of Premises. In the event that the Lessee causes or allows the total or partial destruction of the Property, the Lessee, at its sole expense, shall repair, reconstruct or cause to repair or reconstruct any damaged property or structure of the City.
LEASE AGREEMENT
City of Riverbank and Simply Devine Events, LLC
Section 15. Surrender of Property. Lessee agrees that, on expiration of the Lease Term, the Property and all attachments, fixtures and improvements thereon, shall be surrendered to City in good order, condition, and repair.
Section 16. Expenses of Enforcement. Should any legal action or proceeding be necessary to enforce or interpret this Lease, the prevailing Party shall be entitled to reasonable costs of enforcement or interpretation, including but not limited to, attorney fees, costs, disbursements, and collection costs in addition to other relief to which such Party is entitled.
Section 17. Notice. Any notice or communication required hereunder between City and Lessee must be in writing, and may be given either personally, by email, by registered or certified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by email, a notice or communication shall be deemed to have been given and received upon the email timestamp of the receiving party. Notice transmitted by email after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to be given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
If to City: City of Riverbank
6707 Third Street
Riverbank, California 95367
Attention: Sue Fitzpatrick, Director of Parks and Recreation With courtesy copies to: City of Riverbank
6707 Third Street
Riverbank, California 95367
Attention: City Manager
And to: Brenner White
1414 K Street, 3rd Floor
Sacramento, California 95814
Attention: Douglas L. White, Esq.
LEASE AGREEMENT
City of Riverbank and Simply Devine Events, LLC
If to Lessee: Simply Devine Events, LLC
839 Spring Creek Dr.
Ripon, Ca. 95366
Any Party may change their address for the purposes of this section by giving written notice of the change to the other Parties in the manner provided in this section.
Section 19. Amendments to Lease. This Lease may be supplemented, amended, or modified only by the mutual written consent of the Parties. No supplement, amendment, or modification of this Lease will be binding unless it is in writing and signed by all of the Parties. No provisions in either Party’s correspondence or other business forms used by either Party will supersede or add to the terms and conditions of this Lease.
Section 20. General Provisions.
A. Time of Essence. Time is of the essence for this Lease and each provision contained within is made and declared to be a material, necessary and essential part of this Lease.
B. Partial Invalidity. If a court or an arbitrator of competent jurisdiction holds any provision of this Lease to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected, unless an essential purpose of this Lease would be defeated by the loss of the illegal, unenforceable, or invalid provision.
C. Ambiguities. Each Party has participated fully in the review and execution of this Lease. Any rule of construction that ambiguities are to be resolved against the drafting Party does not apply in interpreting this Lease.
D. Headings Not Controlling. The headings in this Lease are included for convenience only and neither affect the construction or interpretation of any provision in this Lease nor affect any of the rights or obligations of the Parties to this Lease.
E. Necessary Acts and Further Assurances. The Parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Lease.
F. Governing Law. This Lease shall be governed and construed in accordance with the laws of the State of California.
G. Venue. Venue for all legal proceedings shall be in the Superior Court for the County of Stanislaus in the State of California.
H. Waiver. No covenant, term, or condition or the breach thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed, and any waiver of the breach of any covenant, term, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance
LEASE AGREEMENT
City of Riverbank and Simply Devine Events, LLC
by City of any performance by Lessee after the time the same was due shall not constitute a waiver by City of the breach or default of any covenant, term, or condition unless otherwise expressly agreed to by City in writing.
I. Counterparts. This Lease may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
J. Entire Agreement. This Lease sets forth the entire understanding between the Parties as to the subject matter of this Lease and merges all prior discussion, negotiations, proposal letters or other promises, whether oral or in writing.
IN WITNESS WHEREOF, City and Lessee have duly executed this Lease, with the intention of being bound by it as of the Effective Date set forth above.
CITY:
City of Riverbank, a municipal corporation of
the State of California
By:___________________________________
Richard D. O’Brien, Mayor
Approved as to Form:
By:___________________________________
Tom Hallinan, City Attorney
Attest:
By:___________________________________
Kathy L. Teixeira, Interim City Clerk
LESSEE:
Simply Devine Events, LLC
By:___________________________________
Tamra Spade, Consultant
Date: ____________________________
2022 Cheese & Wine Festival
Boundary Map