HomeMy WebLinkAboutC36420 - 2017 Miracle on El Paseo Evnt & Sponsorship CITY OF PALM DESERT , I
SPECIAL PROGRAMS DEPARTMENT
CONTRACT NO. C36420
STAFF REPORT
REQUEST: APPROVE 2017 MIRACLE ON EL PASEO EVENT AND SPONSORSHIP
SUBMITTED BY: Amy Lawrence, Management Analyst
APPLICANT: Mr. Warren Jones
889 E. Janet Circle
Palm Springs, CA 92262
DATE: September 28, 2017
CONTENT: Contract No. C36420
Recommendation
By Minute Motion, approve the following:
1. Miracle on El Paseo event scheduled for Saturday, November 18, 2017;
2. Two phase road closure plan on El Paseo from Highway 74 to Sage Lane;
3. Consumption of alcoholic beverages on City-owned property pursuant to Palm Desert
Municipal Code 9.58.040;
4. Sponsorship Agreement with The Jones Group, Inc. in the amount of $15,000 for the
2017 Miracle on El Paseo event;
5. Expenditure in the amount of $15,000 payable to The Jones Group from Account No.
1104416-4306201.
Strategic Plan Objective
Approval of the 2017 Miracle on El Paseo event and sponsorship would help address the
following priorities as specified in the 2013-2033 Strategic Plan, Envision Palm Desert —
Forward Together.
— Economic Development Priority 3: Create and attract entertainment and events to
enhance and expand the Palm Desert economy and lifestyle.
— Tourism and Marketing Priority 2: Grow existing events and develop new events to
enhance the desirability of Palm Desert as a year round destination.
Discussion
This year marks Miracle on El Paseo's 11th anniversary on El Paseo. Since the event's
inception, attendance has grown substantially from 400 attendees in 2007, to 3,200 attendees in
2016. This year's event is scheduled for Saturday, November 18, 2017, from 5 p.m. to 9 p.m.,
with a DJ slated to play until 10 p.m. The event will include food and beverages offered by some
of the Coachella Valley's top restaurants, live entertainment on two stages, a five-story Ferris
wheel, carnival games, lighting of the 60' Christmas tree on top of the Gucci store, and more.
The event producer is requesting to utilize the same traffic control plan as last year, which will
require complete closure of El Paseo from Highway 74 to Sage Lane during the event. Due to
the extensive amount of time it takes to set-up for the event (i.e. construction of stages, Ferris
wheel, etc.), the applicant is requesting a two phase road closure plan outlined as follows:
STAFF REPORT
APPROVE 2017 MIRACLE ON EL PASEO EVENT AND SPONSORSHIP
SEPTEMBER 28, 2017
PAGE 2
Phase I (closure Saturday, November 18, from 12:01 a.m. to noon): Close curb lanes of El
Paseo between Highway 74 and Ocotillo Drive and close lane closest to the sidewalk on
north side of El Paseo between Ocotillo Drive and Sage Lane.
Phase II (closure Saturday, November 18, from noon to midnight): Closure of all north and
south lanes on El Paseo from Highway 74 to Sage Lane.
Note: Two phase traffic control plans have been utilized for this event in previous years to
minimize impact to El Paseo traffic during set-up.
Upon City Council approval, staff will continue to work with the applicant and other City
departments to assure that an adequate traffic control plan is in place prior to the event (to
include detour signs in residential areas) and that advance notification is given to residents
within 300 feet of the event area. Additionally, staff will ensure that sufficient police services are
provided (at the cost of the event producer) and that all insurance, inspections, and permits are
in place (i.e. encroachment, wide-load, ABC, etc.)
Last year the event producer met with merchants affected by the road closures and to staff's
knowledge there were no issues with the timing of the closures or expansion of the event down
to Sage Lane. In fact, according to the event producer, upon hearing of the expansion, a few
additional merchants opted to participate in the event. For this year's event, staff will again
request that the producer notify all affected businesses along the street and if for any reason
concerns arise with the merchants, the applicant will be required to mitigate them.
Fiscal Analysis
According to the event producer, last year's Miracle on El Paseo event generated approximately
$378,000 in sales on El Paseo by stores such as GUCCI, Bottega Veneta, St. John, Ralph
Lauren and Escada participating with in-store activities during the event. Staff believes that from
a marketing perspective, Miracle on El Paseo gives the City a good amount of coverage,
especially with regard to the El Paseo brand. Given the many benefits that the event brings to
the City, together with the fact that the event is on point with the City's strategic plan objectives,
sponsorship in the amount of $15,000.00 for the event was included in the 2017/18 budget.
Funds are available in the City-Sponsored Events Account No. 1104416-4306201.
Submitted By: Approved:
•
Amy Law ce, Management Analys Lauri Aylaian, City Manager
Reviewed:
Frankie Riddle, Director of Special Programs
•
art Moore, Director of Finance
CONTRACT NO. C36420
SPONSORSHIP AGREEMENT
This Sponsorship Agreement ("Agreement") is entered into this 28th day of September,
2017, by and between the City of Palm Desert ("City"), a California public entity, and The Jones
Group, Inc. ("Consultant"). The City and Consultant are sometimes collectively referred to in this
Agreement as the "Parties" and individually referred to as "Party." The Agreement is made in
light of the following Recitals:
RECITALS
WHEREAS, Consultant wishes to produce an entertainment event entitled the Miracle on El
Paseo in Palm Desert.
WHEREAS, the City desires to sponsor the Miracle on El Paseo event through funding a portion
of the live entertainment costs to perform on the branded "City of Palm Desert" stage.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and in light of the
above Recitals, which are hereby made a part of this Agreement, the Parties hereby agree as
follows:
AGREEMENT
1. Term: The Term of this Agreement shall commence on September 28, 2017 and
continue until November 18, 2017 or upon completion of the Miracle on El Paseo
event.
2. Responsibilities of the Parties:
2.1 Responsibilities of City:
2.1.1 The City shall allow Consultant to hold event on both north and south
lanes of El Paseo between Highway 74 and Sage Lane, subject to
approved traffic control plan.
2.2 Responsibilities of Consultant:
2.2.1 Consultant will produce all aspects of the Miracle on El Paseo event.
2.2.2 Consultant will prominently feature Palm Desert in all advertising
including all social media, television, radio, website banners and e-blasts.
Consultant will feature Palm Desert in all photo and video opportunities
including signage and step-and-repeat back drops.
2.2.3 Consultant will provide City will complimentary tickets to event.
3. Compensation: The City shall pay Consultant a total of $15,000 in one payment by
November 3, 2017. If insurance documents have not been approved by the City's
Risk Manager by this date, check will be released upon final approval of all
insurance.
4. Remedies and Termination:
4.1 Remedies: The Parties agree to provide each other with written notice of
nonperformance, unsatisfactory performance, or any other dispute arising from
the terms of this Agreement within ten (10) days of the deficiency or dispute
being identified. The Parties shall have thirty (30) days from receipt of said
written notice to correct any performance deficiencies. The Parties may mutually
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CONTRACT NO. C36420
agree to extend the thirty (30) day cure period. The Parties agree to cooperate in
good faith to resolve any performance issues or dispute arising from this
Agreement. Either Party in its sole and absolute discretion may waive a default
that cannot be cured.
4.2 Termination: In the event any dispute cannot be resolved under these
procedures, each Party retains such legal and equitable remedies as it may have
under the law to enforce this Agreement. If either Party defaults under this
Agreement and does not timely cure such default, the non-defaulting Party may
terminate this Agreement upon providing written notice of termination of this
Agreement to the defaulting Party, in which case this Agreement shall terminate.
4.3 Termination without cause: Either Party may terminate this Agreement upon at
least ninety (90) days prior written notice to the other Party. If Consultant
terminates this Agreement, pursuant to this Section 4.3, the City shall be entitled
to a pro rata refund of any prepaid amounts.
5. Insurance: Without limiting Consultant's indemnification of City, and prior to
commencement of Work, Consultant shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and
amounts described below and in a form that is satisfactory to City.
5.1 General Liability Insurance: Consultant shall maintain commercial general liability
insurance with coverage at least as broad as Insurance Services Office form CG
00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000
general aggregate, for bodily injury, personal injury, and property damage. The
policy must include contractual liability that has not been amended. Any
endorsement restricting standard ISO "insured contract" language will not be
accepted.
5.2 Automobile Liability Insurance: Consultant shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 01 covering bodily injury
and property damage for all activities of the Consultant arising out of or in
connection with Work to be performed under this Agreement, including coverage
for any owned, hired, non-owned or rented vehicles, in an amount not less than
$1,000,000 combined single limit for each accident.
5.3 Workers' Compensation Insurance: Consultant shall maintain Workers'
Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least $1,000,000). Consultant shall submit to City, along with the
certificate of insurance,.a Waiver of Subrogation endorsement in favor of the City
of Palm Desert, its officers, agents, employees and volunteers.
5.4 Umbrella or Excess Liability Insurance: Consultant may-opt to utilize umbrella or
excess liability insurance in meeting insurance requirements.. In such
circumstances, Consultant may obtain and maintain an umbrella or excess
liability insurance policy with limits that will provide bodily injury, personal injury
and property damage liability coverage at least as broad as the primary
coverages set forth above, including commercial general liability and employer's
liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond if any primary
insurance that would otherwise have applied proves to be uncollectible in
whole or in part for any reason;
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CONTRACT NO. C36420
• Pay on behalf of wording as opposed to reimbursement;
• Concurrency of effective dates with primary policies; and
• Policies shall "follow form" to the underlying primary policies.
• Insureds under primary policies shall also be insureds under the umbrella
or excess policies.
•
6. Other Provisions or Requirements:
6.1 Proof of Insurance: Consultant shall provide certificates of insurance to City as
evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsements must be approved by City's Risk Manager prior to commencement
of performance. Current certification of insurance shall be kept on file with City at
all times during the term of this contract. City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
6.2 Duration of Coverage: Consultant shall procure and maintain for the duration of
the contract insurance against claims for injuries to persons or damages to
property, which may arise from or in connection with. the performance of the
Work hereunder by Consultant, his/her agents, representatives, employees or
subconsultants.
6.3 Primary/Non-Contributing: Coverage provided by Consultant shall be primary and
any insurance or self-insurance procured or maintained by City shall not be
required to contribute with it. The limits of insurance required herein may be
satisfied by a combination of primary and umbrella or excess insurance. Any
umbrella or excess insurance shall contain or be endorsed to contain a provision
that such coverage shall also apply on a primary and non-contributory basis for
the benefit of City before the City's own insurance or self-insurance shall be
called upon to protect it as a named insured.
6.4 City's Rights of Enforcement: In the event any policy of insurance required under
this Agreement does not comply with these specifications, or is canceled and not
replaced, City has the right, but not the duty, to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by
Consultant, or City will withhold amounts sufficient to pay premium from
Consultant payments. In the alternative, City may cancel,this.Agreement.
6.5 Acceptable Insurers: All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance or is on the List of Approved Surplus Line Insurers in the
State of California, with an assigned policyholders' Rating of A- (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition
of Best's Key Rating Guide, unless otherwise apprcved by the City's Risk
Manager.
6.6 Waiver of Subrogation: All insurance coverage maintained or procured pursuant
to this agreement shall be endorsed to waive subrogation against the City of
Palm Desert, its elected or appointed officers, agents, ,officials, employees and
volunteers, or shall specifically allow Consultant or others providing insurance
evidence in compliance with these specifications to waive their right of recovery
prior to a loss. Consultant hereby waives its own right of recovery against the
City of Palm Desert, its elected or appointed officers, agents, officials, employees
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CONTRACT NO. C36420
and volunteers,, and shall require similar written express waivers and insurance
clauses from each of its sub-contractors.
6.7 Enforcement of Contract Provisions (non estoppel): Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City to inform
Consultant of non-compliance with any requirement' imposes no additional
obligations'on the City nor does it waive any rights hereunder.
6.8 Requirements Not Limiting: Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or
other requirements, or a waiver of any coverage normally provided by any
insurance: 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 all inclusive, or to the exclusion of other coverage, or a waiver of
any type. If the Consultant maintains higher limits than the minimums shown
above, the City requires and shall be entitled to coverage for the higher limits
maintained by the Consultant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to the City.
6.9 Notice of Cancellation: Consultant agrees to oblige its insurance agent or broker
and insurers to provide to City with a thirty (30) day notice of cancellation (except
for nonpayment for which a ten (10) day notice is required) or nonrenewal of
coverage for each required coverage.
6.10Additional Insured Status: General and automobile liability policies shall provide or
be endorsed to provide that the City of Palm Desert and its officers, officials,
employees,. agents, and volunteers shall be additional insureds under such
policies. This provision shall also apply to any excess/umbrella liability policies.
6.11 Prohibition of Undisclosed Coverage Limitations: None of the coverages required
herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved
of in writing.
6.12 Separation of Insureds: A severability of interests provision must apply for all
additional insureds ensuring that Consultant's insurance shall apply separately to
each insured against whom claim is made or suit is brought, except with respect
to the insurer's limits of liability. The policy(ies) shall not contain any cross-liability
exclusions. • ,
6.13 Pass Through Clause: Consultant agrees to ensure that its sub-consultants, sub-
contractors, and any other party involved with the project who is brought onto or
involved in the project by Consultant, provide the same minimum insurance
coverage and endorsements required of Consultant. Consultant 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. Consultant agrees that upon request, all agreements-with consultants,
sub-contractors, and others engaged in the project will be submitted.to City for
review,
6.14 City's Right to Revise Specifications: The City reserves the right at any time
during the term of the contract to change the amounts and types of insurance
required by giving the Consultant ninety (90) days advance written notice of such
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CONTRACT NO. C36420
change. If such change results in substantial additional cost to the Consultant,
the City and Consultant may renegotiate Consultant's compensation.
6.15 Self-Insured Retentions: Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be
eliminated, lowered, or replaced by a deductible. Self-insurance will not be
considered to comply with these specifications unless approvedby City.
6.16 Timely Notice of Claims: Consultant shall give City prompt and timely notice of
claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve Or may involve coverage
under any of the required liability policies.
6.17 Additional Insurance: Consultant shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which r, its own judgment may
be necessary for its proper protection and prosecution of theWork.
6.18 Safety: Consultant'shall'execute and maintain its work so as to avoid injury or
damage to any person or-property. In carrying out its Services, the Consultant
shall at all times be in compliance with all applicable local, state and federal laws,.
rules and regulations, and shall exercise all necessary precautions for the safety
of employees appropriate to the nature of the work and the conditions under
which the work is to be performed.
7. Indemnification: Consultant shall indemnify, defend, and hold harmless the City of
Palm Desert, its officers, employees, and agents from any and all losses, costs,
expenses, claims, liabilities, actions, or damages, including liability for injuries to any
person or persons or damage to property arising at any time during and/or arising out
of or in any way connected with. Contractor's activities under the terms of this
agreement, unless solely caused by the gross negligence or willful misconduct of the
City of Palm Desert, its officers, employees, or agents. . ,
8. Force. Majeure: Any delay or failure in the performance by;either party hereunder
shall be excused if and to the extent caused by occurrence of a Force Majeure.
Force Majeure shall mean a cause or event that is beyond tthe reasonabte.control of
the party claiming Force Majeure, Force Majeure includes but not limited to; acts of
God, fires, floods, rain, heavy wind, earthquake, explosions, riots, wars, sabotage,
terrorism, vandalism, accident, restraint of government,. .governmental .act,
injunctions, destruction of site and.other-like events. In the event City. has advanced
funds for the sponsorship to the extent not utilized directly 1'or the event any unused
oortion shall be returned.
9. Notices:Whenever it shall be necessary for either Party to serve notice on the other
regarding this Agreement, such notice shall be served .either in person, by
certified mail,.return receipt requested to the addresses below. . .
City: City of Palm Desert
Palm Desert Civic Center
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: Amy Lawrence '
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CONTRACT NO. C36420
Consultant:. The Jones Group, Inc. , .
889 E. Janet Circle; •
Palm Springs, CA.9,2262
Attn:Warren Jones
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first„ class postage prepaid
and addressed to the Party at its applicable address. -Actual notice shall be
deemed adequate notice on the date actual notice occurred, regardless of the
method of service.
10. Legal Costs: In the event of any legal action between the City and Consultant
arising out of the obligations of the Parties pursuant to this agreement,the prevailing
Party will be entitled to payment of its costs and expenses, including its
reasonable attorneys'fees.
11. Binding Effect: Successors. Neither Party shall assign or transfer, either directly or
by operation of law, this Agreement or any interest herein without the prior written
consent of the other Party, which may be given in such Party's sole and absolute
discretion. Any attempt to do so shall be null and void; and any assignees or
transferees shall acquire no right or interest by reason of such attempted assignment
or transfer. This Agreement shall bind and inure to the benefit of the Parties
and their respective heirs, legal representatives, successors-and assigns and all
of the Parties thereto shall be jointly and severally liable hereunder.
12. Counterparts: This Agreement may be executed in counterparts each of which
shall be deemed an original and all of which together shall constitute one and the
same instrument which shall be binding upon the Parties notwithstanding that
the Parties may not be signatories to the same counterpart.or counterparts. The
Parties may integrate their respective counterparts by attaching the signature
pages of each separate counterpart to a single counterpart.
13. Further Assurances: Whenever requested to do so by the other Party, each
Party shall execute, acknowledge, and deliver any further conveyances,
assignments, confirmations, satisfactions, releases, powers cf attorney, instruments
of further assurance, approvals, consents, and any documents that are necessary,
expedient, or proper to complete anything contemplated by this Agreement. In
addition, each Party shall do any other acts and execute, acknowledge, and
deliver any requested documents in order to carry out the intent and purpose of this
Agreement.
14. Modifications: All modifications to this Agreement must be in writing and signed by
the.Parties:
15. Third-Party Rights: Nothing in this Agreement, express of.implied, is intended to
confer. upon any person, .other .than the Parties and their.respective successors
and assigns, any rights or remedies.
16. Governing Law; Choice of Venue: This Agreement shall be governed and
construed in accordance with California law, including the Fair Political Practices
Act of 1974. Venue shall be Riverside County.
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CONTRACT NO. C36420
17. Severability: If any provision,of this Agreement becomes or is declared by a court to
be illegal, unenforceable or void, that clause will be omitted and the remainder of
the Agreement will continue in full force and effect. Such holding shall in no way
affect the validity or enforceability of this.Agreement.
18. Entire Agreement: This Agreement is the entire agreement between the Parties
and supersedes any prior or contemporaneous representations, understandings or
agreements,whether written or oral..
19. Waiver of Jury Trial: The Parties specifically waive any right to trial by jury in any
court with respect to any contractual, tortious or statutory claim, counterclaim or
cross claim against the other arising out of or connected in any way to this
Agreement because the Parties hereto, both of whom are represented by counsel,
believe that the complex commercial and professional aspects of their dealing with
one another make a jury determination neither desirable nor appropriate.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first hereinabove written.
•
• CITY OF PALM DESERT
Jan C. Harnik, Mayor
ATTEST:
•
Rachelle D. Kiassen, City Clerk
•
THE JONES GROUP, INC.
Warren Jones,.Owner
Approved As To Form:
Robert W. Hargreaves, City Attorney
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Contract No.
PERFORMING ARTS AGREEMENT
This Agreement is entered into this 28th day of September, 2017, by and
between the CITY OF PALM DESERT,a California municipal corporation, hereinafter
referred to as "CITY," and Robert Sanchez, a resident of Chula Vista, hereinafter
referred to as "ARTIST", which includes any person(s) necessary to perform the
services outlined in this Agreement.
RECITALS:
1. The CITY desires to engage the ARTIST to render a live performance at
the location set forth in Exhibit A attached hereto and incorporated herein by this
reference (hereinafter "PERFORMANCE").
2. The CITY desires the ARTIST to render PERFORMANCE on the dates
and times described in Exhibit B attached hereto and incorporated herein by this
reference.
3. The ARTIST is willing and able to render the PERFORMANCE on the
desired dates and times in exchange for compensation by the CITY in the amount
and on the payment schedule set forth in Exhibit C attached hereto and incorporated
herein by this reference.
TERMS AND CONDITIONS:
In consideration of the foregoing recitals, the parties hereto agree as follows:
1. Performance
The ARTIST agrees to render the PERFORMANCE to the best of its abilities on
the dates and times prescribed by Exhibit B attached hereto. The ARTIST shall not
perform under the influence of alcohol or any unlawful narcotic, nor shall the ARTIST
engage in behavior during the PERFORMANCE that would be considered racist,
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Contract No.
sexist, obscene, or otherwise offensive by reasonable audience members attending
the PERFORMANCE. ARTIST's failure to perform in accordance with this Section
shall be deemed material breach of this Agreement.
2. Lighting, Sound Amplification and Other Equipment
The CITY will provide lighting, sound amplification, and other technical
equipment related to sound and lighting for the PERFORMANCE as described in
Exhibit D, attached hereto and incorporated herein by the reference. The CITY will
also provide sound engineers/technicians to set-up said equipment and work in
conjunction with the ARTIST to ensure that all equipment is functioning properly
prior to and during the PERFORMANCE. ARTIST shall be responsible for safely
providing, erecting, operating, and dismantling, at its own expense, all instruments
and additional equipment not described in Exhibit D that is necessary to properly
effectuate the PERFORMANCE.
3. Technical Personnel and Set-Up
In addition to any artistic personnel necessary to the PERFORMANCE, the
ARTIST shall provide, at its own expense, all backstage and technical personnel
necessary to effectuate the PERFORMANCE, including but not limited to stage hands
and such personnel as may be necessary to set up and test any equipment that will
be used during the PERFORMANCE. ARTIST's personnel shall use their best efforts
to ensure that any such advance set-up and testing is safely completed at least one
hour prior to the scheduled PERFORMANCE time.
4. Make-Up and Costumes
The ARTIST shall be responsible for providing, at its own expense, any
costumes and make-up necessary to the PERFORMANCE.
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Contract No.
5. Dressing and Storage Rooms
The ARTIST understands and acknowledges that no private dressing rooms or
other storage rooms will be available or provided by the CITY in connection with the
PERFORMANCE (unless described in Exhibit B attached hereto). However,the CITY
shall provide ARTIST with non-exclusive access to a public rest room at or in the
vicinity of the location of the PERFORMANCE.
6. Compensation
In exchange for the ARTIST's PERFORMANCE in accordance with this
Agreement, the CITY agrees to compensate the ARTIST in the manner described in
Exhibit C attached hereto. Any and all booking fees charged by an outside booking
agency are to be paid for by the ARTIST.
7. Business License
The ARTIST shall obtain a City of Palm Desert Daily Business License for the
fee of$26.00, no later than 30 days prior to PERFORMANCE.
8. Promotion
The CITY is authorized to engage in any and all reasonable activities related to
promotion of the PERFORMANCE without payment of additional fee, royalty or
commission to ARTIST. Said promotional activities may include, but are not limited
to, use of newspaper, radio and television advertisements featuring the ARTIST's
photograph or likeness and brief examples of the ARTIST's work taken from video
or audio recordings. CITY shall refer all inquiries regarding personal appearances
and interviews of the ARTIST to the ARTIST's appointed agent.
9. Illness, Injury or Death of ARTIST
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Contract No.
In the event the ARTIST's PERFORMANCE is rendered impractical or
infeasible due to serious injury, illness or death of the ARTIST, actual threats of
imminent bodily harm to ARTIST if PERFORMANCE is rendered, or unexpected
family emergency, then the ARTIST may cancel the PERFORMANCE without
breaching this Agreement. However, no compensation shall be owing to the
ARTIST. The ARTIST shall make every effort to notify the CITY by telephone,
facsimile, or telegram of such pending cancellation as soon as reasonably possible.
An injury or illness shall be considered serious if, in the opinion of a qualified
physician, the condition is immobilizing or in any way poses a significant threat to
the life and health of the ARTIST. A family emergency shall consist of a sudden and
unexpected hospitalization or death of any immediate family member or any
;unanticipated occurrence beyond the ARTIST's control threatening the health or life
of an immediate family member that requires the ARTIST's personal presence on
the date and time of the PERFORMANCE.
10. Assignment by ARTIST
The parties hereto stipulate that the ARTIST's services are personal in nature
and/or unique, thus the ARTIST may not assign or substitute its PERFORMANCE of
this Agreement with any other artist or party absent the CITY's express consent in
writing. The CITY shall be under no obligation to consent to any proposed
assignment or other substitution by the ARTIST. However if the CITY does consent,
then the ARTIST's failure to personally perform the services required by the
Agreement shall not constitute a breach thereof.
11. Independent Contractor
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Contract No.
All of the services required hereunder shall be performed by ARTIST
personally and/or by ARTIST's agent and employees, who shall remain at all times
under ARTIST's direct control and supervision. It is the parties intent that the
ARTIST shall remain at all times an independent contractor of the CITY and not its
employee or agent.
12. Termination
The CITY reserves the right to terminate this Agreement for any reason,
provided it gives ARTIST at least fourteen (14) days written notice of such
termination prior to the scheduled date of the PERFORMANCE. Said notices shall be
deemed to be given as of the date it is postmarked. The CITY shall also use its best
efforts to notify the ARTIST by telephone of any pending termination as soon as
reasonably possible. In the event of termination pursuant to this Section, the CITY
shall not be in breach and no compensation shall be owing to the ARTIST.
13. Legal Compliance
The ARTIST and its agents, officers, and employees shall comply with all
federal, state, and local laws and regulations applicable to the services being
provided pursuant to this Agreement, including, but not limited to,any requirements
under the American Society of Composers, Authors, and Publishers or under any
other copyright law and/or licensing agreements.
14. Indemnification and Hold Harmless
The ARTIST shall indemnify and hold the CITY, its officers and employees,free
and harmless from any liability, loss, cost or expense resulting from any injury or
damage to any person caused by ARTIST, its agents or employees,while engaged in
the PERFORMANCE of this Agreement as described in Exhibit B. Prior to the
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Contract No.
PERFORMANCE, each performer and/or crew member associated with the
PERFORMANCE must sign the City of Palm Desert Artist Waiver, Release, Hold
Harmless, & Agreement Not to Sue, as described in Exhibit E attached hereto and
incorporated herein by this reference.
15. Insurance
The ARTIST fully assumes all of the following risks:
A. Injury to itself and to its agents or employees arising out of their
performance of this Agreement.
B. Damage to or theft of any personal property or equipment owned
by or under the control of ARTIST, its agents, volunteers and
employees.
16. Liquidated Damages
The parties hereto state that it would be difficult, if not impossible,to calculate
with precision the amount of damages that the CITY would suffer in the event the
ARTIST were to breach this Agreement by nonperformance or late performance.
Thus, the parties hereto stipulate that in the event the ARTIST is not ready, willing
and able to perform on the date and time specified by Exhibit R, and the
PERFORMANCE has not otherwise been canceled pursuant to this Agreement,then
the CITY's damages shall be fixed as follows:
A. Late Performance: The CITY's estimated damages for late
performance shall be$300 for every 15 minute delay in commencement
of the PERFORMANCE caused by the ARTIST. Such damages may be
deducted by the CITY from any compensation owing to the ARTIST.
Any delay in commencement of the PERFORMANCE caused by the
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Contract No.
ARTIST exceeding one hour shall be deemed a nonperformance and
material breach of this Agreement, unless expressly waived by the
CITY.
B. Nonperformance: No compensation shall be due in the event of
any nonperformance by the ARTIST constituting a material breach of
this Agreement. In addition, the CITY's estimated damages for"a
nonperformance shall be $5,000.
This Section shall not prevent either party from recovering compensatory
damages for breaches of this Agreement due to causes other than the ARTIST's late
performance or nonperformance.
17. Attorney's Fees
Should any action or proceeding be brought to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees and
costs.
18. Modification
No modification of this Agreement shall be valid unless agreed to in writing by
both the CITY and ARTIST.
19. Prohibited Interests
The ARTIST represents that neither it nor any of its agents or employees is
currently an officer or employee of the CITY.
20. Force Majeure
Any delay or failure in the Performance by either Party hereunder shall be
excused if and to the extent caused by the occurrence of a Force Majeure. For
purposes of this Agreement, Force Majeure shall mean a cause or event that is
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Contract No.
beyond the reasonable control of the Party claiming Force Majeure, including, but
not limited to, acts of God, fires, floods, rain, heavy winds, earthquake, explosions,
riots, wars, sabotage terrorism, vandalism. accident, restraint of government,
governmental acts, injunctions, destruction of the premises, and other like events
that are beyond the reasonable anticipation and control of the Party affected thereby,
despite such Party's reasonable efforts to prevent,avoid, delay,or mitigate the effect
of such acts, events or occurrences, and which events or the effects thereof are not
attributable to a Party's failure to perform its obligations under this Agreement.
In the case of a Force Majeure event, this Agreement shall be extended to a
mutually agreed upon date within a year of the original performance date. If no future
date can be reasonably agreed upon, this Agreement shall be null and void.
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Contract No.
EXECUTION:
The undersigned represent that they are authorized to execute this Agreement
on behalf of the parties hereto on whose behalf they purport to sign. This
Agreement shall be deemed executed on the date first above written.
CITY OF PALM DESERT [ARTIST]
JAN C. HARNIK, MAYOR (Signature; must be notarized)
ATTEST:
(Printed Name)
RACHELLE D. KLASSEN, CITY CLERK
APPROVED AS TO FORM:
ROBERT W. HARGREAVES
CITY ATTORNEY
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Contract No.
PERFORMING ARTS AGREEMENT
EXHIBIT A
EVENT: 2017 Celebrate the Season Event
NAME OF ARTIST: Bobby Sanchez Combo
DESCRIPTION: Rockabilly- 50's Covers
LOCATION The Gardens on El Paseo
73545 El Paseo
Palm Desert, CA 92260
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Contract No.
PERFORMING ARTS AGREEMENT
EXHIBIT B
DATE: Friday, December 1, 2017
START TIME: 6 p.m.
END TIME: 7 p.m.
ARTIST must arrive in time to offload equipment and coordinate with sound
and lighting technicians for sound check to be completed nc later than 5 p.m.
ARTIST must be ready to begin PERFORMANCE no later than 6 p.m. The
PERFORMANCE must conclude promptly at 7 p.m.
ARTIST shall submit a song list four weeks prior to the PERFORMANCE. CITY
shall review song list and submit changes at a minimum of one week prior to
PERFORMANCE.
The CITY will provide the ARTIST with a private room to change in and
keep personal belongings in during the PERFORMANCE.
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Contract No. _
PERFORMING ARTS AGREEMENT
EXHIBIT C
Compensation of$1,500.00 to be paid at conclusion of PERFORMANCE.
ARTIST is to submit an invoice to the CITY no later than 30 days prior to the
PERFORMANCE. ARTIST shall obtain a City of Palm Desert Daily Business License
for the fee of$26.00 no later than 30 days prior to the performance.
Payment to ARTIST shall occur at the end of PERFORMANCE on the night of
the event. Any payment due to outside booking agencies shall be paid by the
ARTIST.
NOTE: Not obtaining the Daily Business License in a timely manner will result in
delay of payment.
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Contract No.
PERFORMING ARTS AGREEMENT
EXHIBIT D
Professional lighting, sound amplification, and other technical equipment related to
sound and lighting for the PERFORMANCE shall be provided by company to be
determined. The CITY will also provide sound engineers/technicians to set-up said
equipment and work in conjunction with the ARTIST to ensure that all equipment is
functioning properly prior to and during the PERFORMANCE.
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Contract No.
EXHIBIT E
CITY OF PALM DESERT—PERFORMING ARTS AGREEMENT
ARTIST WAIVER, RELEASE, HOLD HARMLESS &AGREEMENT NOT TO SUE
I, (FULL NAME)acknowledge that I have agreed to
participate as a Performer or Crew Member and assume all risks and hazards incidental
to my participation in the City of Palm Desert's 2016 Holiday Celebration (hereinafter
"Event").
I AM AWARE THAT THESE ACTIVITIES ARE POTENTIALLY HAZARDOUS AND THAT I
COULD BE SERIOUSLY INJURED OR EVEN KILLED. I AM VOLUNTARILY
PARTICIPATING IN THE EVENT WITH THE KNOWLEDGE OF THE DANGER
INVOLVED AND AGREE TO ASSUME ANY AND ALL RISKS OF'PROPERTY DAMAGE,
BODILY INJURY, OR DEATH WHETHER SUCH RISKS ARE KNOWN OR UNKNOWN.
I hereby release, discharge and agree not to sue the City of Palm Desert, The Gardens on El
Paseo LLC, El Paseo Village LLC, and The Taubman Company LLC, and their respective
officers, officials, directors, employees, volunteers, and agents for any injury, death, or
damage to or loss of personal property arising out of, or in connection with, my participation in
the Event from whatever cause, including the active or passive negligence of the City of Palm
Desert and The Gardens on El Paseo LLC, El Paseo Village LLC, and The Taubman
Company LLC, or any other participants in the Event. The parties to this agreement
understand that this document is not intended to release any party from any act or omission of
"gross negligence," as that term is used in applicable case law and/or statutory provision.
In consideration for being permitted to participate in the Event, I hereby agree, for myself, my
heirs, spouse, administrators, executors and assigns,that I shall indemnify and hold harmless
the City of Palm Desert and The Gardens on El Paseo LLC, El Paseo Village LLC, and The
Taubman Company LLC from any and all claims, demands, actions,or suits arising out of, or in
connection with, my participation in the Event.
I HAVE CAREFULLY READ THIS RELEASE, HOLD HARMLESS AND AGREEMENT NOT
TO SUE AND FULLY UNDERSTAND ITS CONTENTS. I AM AWARE THAT IT IS A FULL
RELEASE OF ALL LIABILITY AND SIGN IT ON MY OWN FREE WILL.
ARTIST PARTICIPANT SIGNATURE DATE
If under 18 years of age:
PARENT OR GUARDIAN SIGNATURE DATE
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Promotional Agreement— Page 2
PROMOTIONAL AGREEMENT
THIS PROMOTIONAL AGREEMENT ("Agreement") is entered into this day of
20 , by and between The Gardens on El Paseo LLC, a Delaware
limited liability company ("Owner"), as owner of the regional shopping center
commonly known as The Gardens on El Paseo ("Center"), and The City of Palm
Desert ("Participant"). In consideration of the mutual covenants contained in this
Agreement, Owner and Participant agree as follows:
1. Owner grants Participant a temporary right to use space at the Center for the
purpose of conducting a promotional activity to: conduct a free holiday event that is
open to the public, and includes entertainment, refreshments, desserts, Audio
Visual equipment, and rental equipment("Promotion") to enhance retail sales at The
Gardens on El Paseo Shopping Center ("Center"). The Promotion shall take place in
only the following location at the Center: Common Area, Center Court ("Promotion
Location"). Such use by Participant shall be only for the promotional purposes
described herein, during such business hours as designated by Owner. Participant
shall be solely responsible for all costs and expenses related to the Promotion.
2. The Promotion shall begin on December 01, 2017 at 5:30 pm and shall terminate
on December 01, 2017 at 7:30 pm.
3. The Promotion shall be conducted in accordance with Exhibit A titled "Promotional
Activity Rules and Regulations."
4. Participant, at its sole cost, shall deliver the following necessary items for the
Promotion:
(a) Provide volunteers and staff necessary for set up, Promotion
administration and tear down of Promotion, subject to Owner's
pre-approval;
(b) Promote the event through all existing platforms including, but not
limited to, website, social media, email distribution, television
promotion, print advertisement and promotion, subject to Owner's
pre-approval; and
(c) Participant is responsible for the coordination and management of all
contracted vendors for the event, and is solely responsible for
compensating each vendor as previously communicated by both
parties.
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Unless specifically provided herein, Participant is solely responsible for providing
any and all labor, materials, equipment and supplies necessary for conducting
Promotion. The foregoing are subject to Owner approval.
5. Owner shall provide the following items necessary for the Promotion:
(a) 300 white plastic lawn chairs to be placed on the Center Lawn for the
entertainment;
(b) Up to six (6) folding tables and six (6) black branded table cloths for use
during the Promotion; and
(c) Contracted Santa Claus to pose for photos with attendees during the
Promotion.
6. Participant shall set up the Promotion only on the following date(s) and time(s):
December 2, 2017 from 12:00 p.m. to 5:30 p.m.
7. Participant shall remove all of its property immediately upon expiration or
termination of this Agreement and shall leave the premises in a neat and clean
condition. Participant, at its sole cost, shall promptly repair any damage to the
Center caused by the Promotion. Notwithstanding, Owner must approve the plans
for the repairs in advance and in writing.
8. Owner may, at any time and with or without cause, terminate this Agreement
immediately upon notice to Participant and without further obligation to Participant.
9. Owner reserves the right to relocate Participant and/or the Promotion Location to
another location within the Center upon twenty four (24) hours' written notice to
Participant, which relocation must be completed within the time frame designated
by Owner. Any relocation shall be at Participant's sole cost and expense.
10. Participant shall indemnify, defend and save harmless Owner and each partner and
member thereof, The Taubman Company LLC as Managing Agent, their respective
directors, officers, employees, subsidiaries, affiliates, merchants and tenants
leasing or owning space at the Center, from and against any and all cost, expense,
legal action, claims for property damage, personal injury, bodily injury or death,
including reasonable attorneys' fees and the cost of defense, arising or growing out
of Participant's performance of the terms and conditions of this Agreement,
including the performance of any services, whether caused in whole or in part by the
error, omission, misconduct and/or negligent acts of Participant and/or its agents.
Owner shall indemnify, defend and save harmless Participant and its respective
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officials, officers, employees, and volunteers, from and against any and all cost,
expense, legal action, claims for property damage, personal injury, bodily injury or
death, including reasonable attorneys' fees and the cost of defense, arising or
growing out of Owner's performance of the terms and conditions of this Agreement,
including the performance of any services, whether caused in whole or in part by the
error, omission, misconduct and/or negligent acts of Owner and/or its agents.
11. Throughout the term of this Agreement, Participant shall maintain the following
minimum insurance coverage and shall be solely responsible for the payment of all
deductibles and/or self-insured retention contained in the insurance policies. Prior
to the commencement of this Agreement, Owner must be provided with a certificate
of insurance that evidences the following:
(a) Commercial General Liability - with minimum coverage of $1,000,000 per
occurrence for bodily injury and property damage, including personal and
advertising injury, and products and completed operations, which coverage
shall be on a per location basis;
(b) Commercial Automobile Liability- $1,000,000 combined single limit for bodily
injury and property damage, covering all owned, non-owned, or hired
automobiles used in the regular course of business;
(c) Workers' Compensation - in full compliance with all statutory requirements in
the state in which the Center is located and covering all employees. In the
event that Participant is not subject to state statute, then Owner requires
Workers' Compensation as available in that state;
(d) Employer's Liability - in a minimum amount of $1,000,000 each accident,
$1,000,000 each employee and $1,000,000 policy aggregate;
The Commercial General Liability policy shall name as additional insureds Owner
and The Taubman Company LLC as Managing Agent. All insurance coverage
shall stipulate that coverage shall not be cancelled or not renewed unless the
insurer gives thirty (30) days' prior written notice to all insured parties. The
certificate of insurance must designate that all coverage is primary and not
contributing with any other insurance available to the additional insureds and that
coverage is applicable to all services required under the Agreement with the
insured. Insurance coverage shall be maintained with an insurance company
licensed and admitted to do business in the state in which the Center is located
and shall be rated by AM Best as "A" VIII or better, or as otherwise acceptable to
Owner.
The insurance policies must include a waiver by the insurance company of all
rights against Owner and the Taubman Company LLC as Managing Agent, their
respective agents, directors, partners, officers, employees and representatives
that might arise by reason of any payment under any policies carried by Participant
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or by reason of any act or omission of Owner, its agents, directors, partners,
officers, employees or representatives. The failure to provide insurance coverage
as required herein shall not relieve Participant of its obligation to defend and
indemnify Owner and The Taubman Company LLC as Managing Agent against
any claim or loss that would have been otherwise covered by such insurance.
12. Participant shall bear the risk of loss to any of its property from any theft, damage, or
vandalism while it is located at the Center.
13. Any notice required to be given or which may be given to a party to this Agreement
shall be forwarded in writing, by personal delivery, by certified mail (return receipt
requested), overnight mail, or by facsimile to Owner at the following address and
facsimile number:
To Owner:
The Gardens on El Paseo
73-545 El Paseo Suite 2500
Palm Desert, California 92260
Attn: General Manager
Fax: 760-862-1990
, and to Participant at the following address and facsimile number:
To Participant:
The City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
Contact Name: Amy Lawrence
Fax: (760) 341-6372
, or at such other address or addresses as Owner or Participant may, from time to
time, designate in writing to the other party. The addresses and facsimile numbers
provided herein are conclusively deemed to be valid, and notice given in
compliance with this paragraph shall be conclusively presumed to be proper and
adequate unless a written change of address or facsimile number is provided to
the other addresses in the manner required hereby.
14. In the event any dispute or litigation between Owner and Participant arise out of or
in connection with this Agreement, the prevailing party or parties in such suit or
action shall be entitled to recover from the other party or parties any and all expense
and costs, including reasonable attorney's fees, incurred in connection with such
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Promotional Agreement— Page 6
suit or action. In the case that the prevailing party is Owner, The Taubman
Company LLC, as Managing Agent, is also entitled to recover as provided herein.
15. Any and all information ("Information"), including the terms of this Agreement,
whether oral or written and that is conveyed to Participant, directly or indirectly, shall
be considered confidential and proprietary, unless otherwise required by law. Such
Information shall be held in the strictest confidence and shall be used only to
accomplish the purposes set forth in this Agreement and shall not be revealed to
any third party without the prior written consent of Owner.
16. Participant shall not, directly or indirectly, voluntarily or by operation of law assign,
license, or transfer any part or all of its interest in this Agreement without Owner's
prior written consent. Any assignment, license, encumbrance, or transfer of this
Agreement without Owner's consent shall be void and shall constitute a material
default.
17. Participant shall comply with all, present and future, federal, state and local,
statutes, ordinances and regulations of all governmental authorities having
jurisdiction over the parties hereto and this Agreement.
Neither Participant nor any of its officers, employees, directors, affiliates,
shareholders, partners or owners is listed as a "Special Designated Person" or is in
violation of any United States laws relating to terrorism or money laundering,
including, but not limited to, Executive Order No. 13224, effective September 23,
2001, and the U.S. Bank Secrecy Act of 1970, both as amended from time to time.
Participant further warrants that no investigation, inquiry or charge is pending
against Participant or any of its officers, employees, directors, affiliates,
shareholders, partners or owners under any laws or orders described in this
paragraph.
18. This Agreement shall be governed by and construed in accordance with the laws of
the state in which the Center is located. If any provision of this Agreement is ruled
invalid or unenforceable by a court of proper jurisdiction, then the remainder of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
19. This Agreement, together with any Exhibit(s) hereto, represents the entire
Agreement between the parties and supersedes all prior negotiations,
representations, writings or agreements between the parties, whether oral or
written. No amendment or modification to this Agreement shall be binding unless it
shall be in writing signed by both parties.
20. A waiver by a party of any of the terms and conditions of this Agreement, in one
instance, shall not be deemed or construed to be a waiver of such terms or
conditions for the future or any subsequent breach thereof. Any waiver must be in
writing in order to be effective.
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21. This Agreement shall be binding upon and inure to the benefit of the parties and, in
case of Owner, its successors and assigns, and in the case of Participant its
permitted successors and assigns.
22. The parties acknowledge that both parties participated equally in the negotiation of
this Agreement and that, accordingly, no court construing this Agreement shall
construe it more stringently against one party than against the other, regardless of
which party's counsel drafted this Agreement.
23. All representations, warranties, covenants and agreements herein contained on the
part of the parties shall be effective, and shall continue so long as any obligations
arising pursuant to this Agreement remain unperformed or until the Agreement
terminates according to its terms, except as otherwise provided herein.
24. This Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement. The counterparts of this Agreement may
be executed and delivered by email, facsimile or other electronic signature, by any
of the parties, to any other party, and the receiving party may rely on the receipt of
such document so executed and delivered by email, facsimile or other electronic
means, as if the original had been received. Copies of signatures, whether hard
copies or electronic copies, shall be treated the same as original signatures for all
purposes.
25. Owner strives to maintain the highest ethical standards regarding its business
relationships. If you have any reason to believe that such standards are being
compromised concerning this Agreement or otherwise, please call our
independently-operated, toll-free, 24-hours-a-day confidential hotline at
1-888-773-2513 or report the matter on our independently-operated, confidential
website at https://iwf.tnwgrc.com/taubman. Both the hotline and website are
completely confidential and anonymous.
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This Agreement entered into as of the day and year first written above.
By:
Manager for The Taubman Company LLC,
Managing Agent on behalf of Owner
Print Name
By:
Authorized Signatory for Participant
Print Name
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Exhibit A
PROMOTIONAL ACTIVITY RULES AND REGULATIONS
1. Participant shall obtain all licenses and/or permits required for the Promotion. The
Promotion must comply with any law, regulation, ordinance or code of any
governmental entity having jurisdiction over the Center.
2. Raffles or any similar activity shall be conducted subject to, and in accordance with
federal, state and local laws and regulations including gaming and/or lottery laws
and require the prior written consent of Owner. Notwithstanding the foregoing,
Participant shall provide notice in all materials related to any promotional games,
sweepstakes, contest drawings and giveaways (individually and collectively
referred to as "Sweepstakes") that Owner and The Taubman Company LLC as
Managing Agent have no involvement in Sweepstakes and Participant is the party
solely responsible for Sweepstakes. Participant agrees to cause each entrant to
release and hold harmless Owner and The Taubman Company LLC as Managing
Agent from any and all claims growing or arising out of any Sweepstakes.
3. Owner shall provide security for the Promotion in accordance with the standard
operating procedures for the Center. Notwithstanding the foregoing, Participant
shall be responsible for initiating and supervising all safety precautions and
programs to ensure the safety of all visitors to the Center in connection with the
performance of this Agreement.
4. In the event that Participant fails to vacate the Center upon expiration or termination
of this Agreement, Owner may remove or cause to be removed all of Participant's
property from the Center and have it stored either on-site or at an off-site storage
facility for a period of thirty (30) days, after which such property will conclusively be
deemed abandoned by Participant and may be discarded by Owner without any
liability to Participant whatsoever. Owner shall not be responsible for property or
any damage thereto, and Participant shall be solely responsible for all costs
associated with such removal, storage and disposal incurred by Owner.
5. Any visual or audiovisual demonstrations which constitute all or a part of the
Promotion are subject to the standard operating procedures of the Center.
6. The height, sound level, location and placement of the Promotion shall be subject to
the rights of Center tenants and department stores and shall not impede the free
flow of pedestrian traffic throughout the Center.
7. In the event that Participant is permitted to conduct solicitation during Promotion as
determined in Owner's sole discretion, Participant and Participant's employees
and/or agents shall not solicit Center customers in any location of the Center other
than the Promotion Location. Employees and/or agents of Participant are not to "call
out" to Center customers in a loud, aggressive or hawking manner; Licenses'
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employees and/or agents must maintain a volume of speaking voice appropriate for
Center.
8. Owner may prohibit, remove or relocate, at Participant's sole expense, any
Promotion or portion thereof, which in its sole discretion is not in accordance with
the character of the Promotion, the standards of the Center, or is in violation of any
law.
9. To the extent permitted by law, Participant shall provide Owner with a list of
customer names and addresses obtained in the course of the Promotion, unless
otherwise required by law. No such names and addresses shall be used by
Participant in connection with the conduct of any future business activity, nor shall
such names and addresses be sold to any third party.
10. All promotional materials, including Sweepstakes distributed by Participant related
to Promotion and to Center customers must be approved by Owner in advance and
in writing prior to such distribution, which approval shall be subject to revocation.
11. All determinations regarding the use of the Center premises shall be made solely by
Owner and shall be final.
12. Any rights granted to Participant under the terms of this Agreement shall not
compete with: (i) Owner's agreement with JCDecaux Mallscape to sell and display
third-party advertising in the common areas of the Center from the JCD Displays
(defined below); or (ii) with Owner's agreement with an agency or advertiser for the
installation and display of TMMI Advertising (defined below) in the common areas of
the Center. As used herein the term "JCDecaux Displays" shall mean certain
advertising structures and/or displays featuring advertisements sold by third parties
by Owner's tenant, JCDecaux Mallscape. As used herein, the term "TMMI
Advertising" shall mean certain third party advertising signage and displays sold by
Owner or The Taubman Company LLC, d/b/a Taubman Mall Media Impact
("TMMI"), on behalf of Owner, displayed in the common areas of the Center from
time to time.
13. These Promotional Activity Rules and Regulations incorporate by reference, all
rules and regulations of the Center, including rules pertaining to rights of public
access.
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