HomeMy WebLinkAbout2001-033
. .
" .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 2001-33
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A SERVICE
AGREEMENT WITH BIG RED APPLE, REGARDING THE MARKETING AND
MANAGEMENT OF THE SAN BERNARDINO STADIUM.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City a Service Agreement with Big Red Apple, regarding
the Marketing and Management of the San Bernardino Stadium, a copy of which is attached
hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at
length.
III
III
III
.
2001-33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A SERVICE
AGREEMENT WITH BIG RED APPLE, REGARDING THE MARKETING AND
MANAGEMENT OF THE SAN BERNARDINO STADIUM.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
Joint
and Common Council of the City of San Bernardino at a Regular meeting thereof, held on the
5th day of February ,2001, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA X
LIEN X
MC GINNIS X
SCHNETZ X
SUAREZ X
ANDERSON X
MC CAMMACK X
~~h~
20 The foregoing resolution is hereby approved this
2001.
8th day of February ,
21
22
23
24
Approved as to
25 Form and legal content:
26 JAMES F. PENMAN,
27 City orney ()
By: y'r-</: ,&~~
~, i/\,~
A~,.~~l
Susan Lien, Mayor Pro Tem
City of San Bernardino
28
2001-33
SERVICES AGREEMENT
THIS AGREEMENT is entered into this 8th day of February 2001, by
and between BIG RED APPLE, A California corporation ("CONTRACTOR") and the CITY
OF SAN BERNARDINO ("CITY").
WITNESSETH:
WHEREAS, CITY desires to promote and maximize the use and availability of the San
Bernardino Stadium (the "Stadium") as a focal point for community events which will be
financially self-sustaining and which will have the potential of providing a revenue source for the
CITY and maximizing the enjoyment of the Stadium for all San Bernardino residents; and
WHEREAS, CONTRACTOR has the professional skill, experience and ability to
provide management, booking and marketing of the San Bernardino Stadium;
NOW, THEREFORE, the parties hereto agree as follows:
1. During the term of this Agreement, and any extension thereof pursuant to
Sections 5 and 6 herein, CONTRACTOR shall furnish professional management, booking and
marketing services to the CITY, and CITY shall furnish maintenance review, office space, and
facilities, consistent with the Scope of Work which is attached hereto as Exhibit "A" and
incorporated herein in full by this reference (the "Scope of Work").
2. CONTRACTOR shall be paid monthly for such services in the amounts and as set
forth in this Agreement.
3. In addition, CONTRACTOR shall provide the City Administrator's Office with
invoices, cost projections, and receipts evidencing actual and anticipated revenues and
expenditures consistent with the Scope of Work. No expenditures made by CONTRACTOR
shall be reimbursed by CITY without the prior written approval of the City Administrator or
his/her designee.
2001-33
4. CONTRACTOR shall be paid $42,000 for the term of the Agreement, and for any
extensions thereof as provided in Section 6 herein, payable in twelve (12) monthly installments
of $3,500, CONTRACTOR shall also be paid a performance incentive payment of 25% of all
gross rental income and income from other sources generated through the efforts of
CONTRACTOR resulting in events held at the Stadium. Gross income included in the basis of
calculation of the incentive payment shall not include revenues paid to CITY by the San
Bernardino Stampede in accordance with the terms of the Stadium lease; or fees paid to CITY
for skybox rentals, Incentive payments shall be made by the CITY on a monthly basis after
payment has been made to the CITY by the facility users for these events.
5. CONTRACTOR hereby guarantees that the CITY shall receive a minimum of
$60,000 in gross revenue generated over the term of this Agreement, excluding revenues paid to
CITY by the San Bernardino Stampede in accordance with the terms of the Stadium lease and
fees paid to CITY for skybox rentals. This minimum revenue shall not include events already
scheduled for the Stadium prior to the execution of this Agreement. If the guaranteed amount of
gross revenue has not been received by CITY at the end of the first year as provided for herein,
then CONTRACTOR shall continue to provide marketing and management services for the
Stadium at no cost to CITY, but at a monthly value deemed to be $3,500, until the amount of
revenue received by CITY from such gross revenue and services provided totals $60,000; or, if
CONTRACTOR refuse to provide such services under such conditions or if this provision is
challenged by anyone other than CITY and is deemed unenforceable in a court of law, then
CONTRACTOR shall pay to CITY the difference between the amount of gross revenue
generated during the first year of this Agreement and $60,000. For the purposes of determining
whether or not CONTRACTOR has met the guaranteed amount of revenue in accordance with
2
2001-33
this section, the CITY will take into account any booked events scheduled for the six months
following the termination date.
6. The term of this Agreement shall be for one (I) year from the date above. The
CONTRACTOR and CITY agree to begin negotiations no later than 60 days before the
expiration of this Agreement concerning the terms of any subsequent Agreement. If this
negotiating process cannot be concluded prior to the expiration of this Agreement, this
Agreement may be continued for up to three (3) months on a month-to-month basis upon mutual
written consent of CONTRACTOR and CITY. This Agreement may be terminated at any time
by thirty (30) days written notice by either party. If the Agreement is terminated,
CONTRACTOR shall be entitled to receive performance incentive payments for future events
that have been booked by CONTRACTOR prior to termination of the Agreement, in accordance
with Section 4 herein. These incentive payments shall be made by the CITY after payment has
been made to the CITY by the facility users for these events. If this Agreement is terminated by
CITY pursuant hereto, CONTRACTOR shall be relieved of further performance or repayment
obligations set forth in Section 5 herein. If at any time during the term of this Agreement
CONTRACTOR dies, becomes disabled, or for any reason outside CONTRACTOR'S control
becomes unable to perform the services required under this Agreement, CONTRACTOR'S
obligations shall be terminated without further obligation of CITY or CONTRACTOR.
7. CONTRACTOR shall indemnify, defend and hold harmless the CITY, its
officers, employees and agents (including, without limitation, reasonable costs of defense and
reasonable attorneys' fees) arising out of or related to CONTRACTOR's performance of this
Agreement, except that such duty to indemnify, defend and hold harmless shall not apply where
injury to person or property is caused by CITY's willful misconduct or negligence, CITY shall
indemnify, defend and hold harmless the CONTRACTOR, its officers, employees and agents
3
2001-33
(including, without limitation, reasonable costs of defense and reasonable attorney's fees) arising
out of or related to CONTRACTOR's performance of this Agreement, except that such duty to
indemnify, defend and hold harmless shall not apply where injury to person or property is caused
by CONTRACTOR's willful misconduct or negligence. The costs, salary and expenses of the
City Attorney and members of his office in enforcing this Agreement on behalf of CITY shall be
considered as "attorneys' fees" for the purposes of this paragraph.
g, While not restricting or limiting the foregoing, during the term of this Agreement,
CONTRACTOR shall maintain in effect policies of comprehensive public, general and
automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and
statutory Worker's compensation coverage, and shall file copies of said policies with the CITY's
Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as
an additional named insured in each policy of insurance provided hereunder. The Certificate of
Insurance furnished to the City shall require the insurer to notify CITY of any change or
termination in the policy.
9. CONTRACTOR shall perform work tasks provided by this Agreement; but for all
intents and purposes CONTRACTOR shall be an independent contractor and not an agent or
employee ofthe CITY.
10. CONTRACTOR shall be permitted to produce, promote, co-produce, or co-
promote events at the Stadium as an independent agent, and not as the representative of the
CITY, only upon the express written consent of the CITY for each such event. Big Red Apple
shall pay the established rental rate and all other costs that would normally apply to any other
renter for such events at the Stadium. Any financial risk assumed by CONTRACTOR as a
producer, promoter, co-producer, or co-promoter of events at the Stadium shall be the sole
responsibility of Big Red Apple and not the CITY.
4
2001-33
II. In the performance of this Agreement and in the hiring and recruitment of
employees and independent contractors, CONTRACTOR shall comply with all State and federal
tax laws, shall not discriminate on the basis of race, religion, color, ethnic group identification,
sex, age, physical or mental disability, and shall not discriminate unlawfully against any
employee or independent contractor for employment because of race, religion, color, ethnic
group identification, sex, age, physical or mental disability.
12. In the performance of this Agreement, all payments made by CONTRACTOR to
the City of San Bernardino shall be by check, cashier's check or money order. In the performance
of this Agreement, all payments made to CONTRACTOR (except parking fees paid by
individual car drivers) shall be by check, cashier's check or money order. In the performance of
this Agreement, all payments made by CONTRACTOR to its employees, independent
contractors, and other so due and owing money from CONTRACTOR shall be by check,
cashier's check or money order.
13, Any notice to be given pursuant to this Agreement shall be deposited with the
United Postal Services, postage prepaid and addressed as follows:
TO THE CITY:
City Administrator's Office
300 North "D" street
San Bernardino, CA 92418
Facsimile (909) 384-5138
TO THE CONTRACTOR:
Big Red Apple
P.O. Box 5742
San Bernardino, CA 92412-5742
Facsimile (909) 885-6064
Notice may also be given by facsimile ("fax") during regular business hours to the numbers
listed above, and such notice shall be deemed given upon receipt as reflected in a transmission
verification. Nothing in this paragraph shall be construed to prevent the giving of notice by
personal service.
5
2001-33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and date first above written.
Date: February IJ- ,2001
By:
Date:
February 8, 2001
CITY 2RNARDINQ \,
By: ~...-:?<~ '
~Susan Lien, Mayor Pro Tem
----
ATTEST:
~Jl h,~
Rachel ark, City Clerk
APPROVED AS TO FORM AND
LEGAL CONTENT:
James F. Penman, City Attorney
Vh~? -; /:-,A~,
6
2001-33
EXHIBIT II A II
SCOPE OF WORK
Management of the San Bernardino Stadium
Scope of Work and Work Program
To provide professional management booking and marketing of the San Bernardino
Stadium.
Big Red Apple ("BRA") shall be responsible for:
I. Supervising all aspects of non-baseball Stadium event operations, including:
a. Recruiting and scheduling events (other than baseball) into the Stadium,
parking lots and any other ancillary facilities which are available for such use,
b. Supervising Stadium operation at all performances or use of the facility (other
than baseball). Supervision shall include all aspects of the operation,
including ticket sales, concessions, merchandise, stagehands and related
personnel, including, but not limited to ushers, security and other production
services. BRA will be physically present at all events.
c. BRA will not be responsible for supervising City events, or events for which
fees have been waived.
2. Reporting monthly to the City Administrator's Office regarding work in progress,
prior year activity and projected marketing, booking and use of the Stadium,
3. Directing the marketing plan for the Stadium and place advertising in order to
receive long-lasting exposure in reaching the specific segments of the live
entertainment and amusement industries that utilize facilities similar to the
Stadium, and/or which have previous positive experience in the Inland Empire.
Marketing will concentrate on attracting promoters, producers, personal
managers, booking agents, performers, associations and organizations that
produce trade shows, film locations and other events. The marketing plan shall be
implemented in consideration with all other city marketing plans and in
coordination with the City's Marketing and Public Affairs Officer.
4. Reporting income to City in the form required by City Administrator on a
monthly basis, and depositing funds in City account(s) as required by City
procedures.
5. Assisting the City in renegotiating the Stadium lease, upon written request and
authorization of the City.
7
2001-33
. .
6, Making recommendations to the City for facilities modifications to enhance and
expand the capabilities of the Stadium for parking lot, concert, and other events
compatible with the facility.
City shall be responsible for:
1. Maintaining the premises as required by Building Codes.
2. Reviewing and/or approving show offers on 48-hour notice.
3. Maintaining and providing for major capital facility improvements, utilities and
landscaping.
4. Providing BRA with one office, secretarial space, shared conference room
facilities, and telephone and fax service lines. BRA shall pay all costs associated
with telephone usage.
5. The City Administrator or his designee shall review with BRA and approve a
marketing plan for the Stadium within forty-five days after submission of the plan
by BRA.
6. No marketing expenditures made by BRA shall be reimbursed without the prior
written approval of the Director of Parks, Recreation, and Community Services or
his/her designee.
7. Developing a policy concerning the waiver of rental fees for non-profit
organizations. The policy shall balance the desire to make the facility available
for community events with the need to have the maximum number of days
available to book fee-paying events into the Stadium.
8