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A5282 - PALM SPRINGS POWER BASEBALL CLUB, INC.
CONTRACT ABSTRACT Contract prepared by: Janet Burns, Administrative Specialist Submitted on: 9/5/24 By: Janet Burns Note: Extensions have expired, and new Agreement was created in updated City- approved format to better align with all contracts and agreements in the department. Contract Company Name: Company Contact: Summary of Services: Contract Price: Funding Source: Contract Term: Munis Contract Number: Palm Springs Power Baseball Club, Inc. Andrew Starke, President Recreational Tennant Agreement for Power Baseball usage of Stadium and Cerritos Fields $0, See Section 2.1 Fees and Charges None August 1, 2023 through July 31, 2028 Contract Administration Lead Department: Contract Administrator: Parks & Recreation Lauri Aylaian, Interim Director Contract Approvals Council/ Community Redevelopment Agency Approval Date: Agenda Item No./ Resolution No.: Agreement No: N/A N/A A5282 Contract Compliance Exhibits: Signatures: Insurance: Bonds COMPLETED COMPLETED COMPLETED N/A Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 1 | Page CITY OF PALM SPRINGS RECREATIONAL TENANT AGREEMENT TO USE A PARKS & RECREATION FACILITY FY 2024-2027 This Agreement to Use Parks & Recreation Facility (“Agreement”) is made and entered into this 1st day of August, 2023, (“Effective Date”) by and between the City of Palm Springs, a California municipal corporation and charter city (“City”), located at 3200 E. Tahquitz Canyon Way, Palm Springs and Palm Springs Power Baseball Club, Inc. (“PSP”), a California corporation, with its principal place of business located at the Palm Springs Stadium (“Center”) located at 1901 East Baristo Road, Palm Springs, CA 92262, with reference to the following facts: The parties enter into this Agreement on the basis of the following facts and intensions: RECITALS WHEREAS, the City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs; and WHEREAS, it is recognized that through a cooperative Agreement between City and PSP the community will be afforded the fulfillment of one of its recreational goals for citizens; and WHEREAS, The City is the owner of that certain real property located at 1901 East Baristo Road (“Stadium”), and 402 S. Pavilion Way (“Cerritos Field”), Palm Springs, CA; and NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1. A. INTENT OF AGREEMENT 1.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide an instructional league for Minor and Independent League professional players and competitive collegiate-level baseball entertainment for residents and visiting youth and adults at the Stadium as outlined in Exhibit A. 1.2 The Parties agree that PSP is granted non-exclusive use of the Stadium and Cerritos Field (collectively “City Facilities”) for their program; subject to the terms and conditions set forth in the terms of this Agreement. 1.3 PSP usage of the City Facilities shall be for the sole and exclusive purpose of operation of baseball practices, games, and tournaments during the Term of this Agreement. PSP shall not use or permit to be used the City Facilities or any part thereof for any purpose or purposes other than the express purpose or purposes for which the City Facilities is hereby rented to PSP. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 2 | Page 1.4 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and City for recreational activities. 1.5 It is the intent of this Agreement that both City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium and Cerritos Field. 1. B. FACILITY USE AND SCHEDULING 1.1 PSP shall have the exclusive use of the offices, locker rooms, and concession located at the Stadium subject to the terms and conditions set forth in Section 2. 1.2 Parties agree that PSP may identify the Stadium as its “home” Stadium for all baseball games held for or on behalf of PSP during the term of the Agreement. 1.3 PSP shall have the exclusive use of the City Facilities as outlined in Exhibit A PSP may request additional use of the City Facilities for events other than baseball; however, City does not guarantee availability of the City Facilities for any additional use not already authorized under this Agreement, per Exhibit A. PSP shall prepare and submit to City an updated Calendar Schedule for calendar year 2024 on or before December 1, 2023, and as needed throughout the term of this Facility Use Agreement. City and PSP shall meet to discuss the proposed Calendar Schedule, and to the extent the City's exclusive use dates as identified herein, or any other such dates subsequently identified by the City for its exclusive use, are appropriately identified, the City will review the proposed Calendar Schedule, whose approval will not be unreasonably withheld. Each new Calendar Schedule approved by the City shall be filed with the City Clerk, and thereupon be considered a replacement of Exhibit A to this Tenant Agreement for the corresponding calendar year. 1.4 The City has sole discretion to resolve all scheduling conflicts. The City shall act in a timely manner to resolve all scheduling conflicts. 1.5 City reserves for itself the exclusive use of the City Facilities, including the exclusive right to control and monitor admissions at all gates and the conditions by which all attendees are authorized to bring personal items, food and beverages (excluding alcoholic beverages), or other accessory items into the City Facilities as outlined in Exhibit A. 1.6 PSP may have non-exclusive use of City Facilities at all other periods of time, with all written requests for use of City Facilities submitted in writing to the Contracting Officer at least 30 days in advance to City and are subject to changes with the approval of the Contracting Officer. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 3 | Page All requests for use of Cerritos Field for baseball activities must be submitted in writing to the Contracting Officer or other City designee. 1.7 PSP shall have exclusive right to use the locker rooms located at the Stadium during the period commencing with the first home game of the team and ending with the last home game of the team, or the last tournament to be hosted by the team, whichever is later. 1.8 End of Season For purposes of this agreement, PSP operates various baseball seasons, as described in Exhibit A. Section 1.8 describes the transfer of responsibilities and exclusive use between the parties at the end of the various Power and non-Power Baseball seasons. 1.8.1 Within five (5) days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the offices and interior storage rooms, unless PSP has previously notified City of its intended non-exclusive use of the Stadium commencing upon the end of Season or of any tournament, to which City has approved such use. PSP’s schedule shall take precedence in all scheduling of the Stadium during the periods described in Exhibit A. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contracting Officer for use of the Stadium by community and youth organizations during the baseball seasons. Contracting Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 1.8.2 Unless PSP has obtained City's prior approval for continued non-exclusive use of the Stadium for the period extending from all Power and non-Power Baseball season, City shall relinquish the Stadium to PSP one week prior to Opening Day for the summer season. However, the field can still be rented out by the City for other baseball events if PSP is not using the field. City shall relinquish the Stadium to PSP on an as-scheduled basis for tournaments and special events approved by the City, and PSP shall relinquish the Stadium back to the City within 48 hours of conclusion of any tournament or special event. 2. AREAS OF RESPONSIBILITY 2.1 Fees and Charges Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 4 | Page All fees are based on the FY2018 Facility Use Agreement approved by City Council on January 24, 2018. PSP acknowledges that the City shall conduct reviews of its fees and that these fees may be increased in the City’s sole discretion. Any increases to monthly rental fees and seasonal deposit shall be outlined in future Agreements. 2.1.1 Rent If not paid already, PSP agrees to pay the City One Thousand Dollars ($1,000) per month as the flat rate rental fee for usage of the Stadium and/or Cerritos Field for games and tournaments and storage of related equipment during the contractual period. At the end of each year of the Agreement, rent shall be increased by an amount equal to the increase in the Consumer Price Index for All Urban Consumers, All Items, for the Riverside-San Bernardino-Ontario Area for the previous twelve (12) months. The first such increase shall be effective 1st of August 2025, for the increase in the CPI-U between July 1, 2024 and July 1, 2025. In the event that the PSP does not utilize the Stadium or Cerritos Field during any month or any portion of any month during the term of this Agreement, the PSP is still responsible for the full monthly rental payment to the City unless the Agreement is terminated pursuant to Section 5.7. PSP acknowledges that the City shall conduct an annual review of its monthly rental fees and these rental fees may be increased. Any increase in monthly fees shall be outlined in future agreements. City Finance department shall invoice PSP for rental fee. All monthly payments will be due by the first City business day of each month. 2.1.2 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by PSP not paid within five (5) calendar days of its due date shall be subject to five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 2.1.3 Security Deposit Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 5 | Page PSP has provided City with a security deposit in the sum of One Thousand Dollars ($1,000). City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent pursuant to Section 2.1.2 In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section shall in any way diminish or be construed as waiving any of the City' s other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as outlined in Exhibit A, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City under this Agreement, shall be made after sixty (60) days have elapsed following the effective date of said termination. 2.1.4 Concession Fee The rental fee paid by PSP pursuant to Section 2.1.1. herein shall be in lieu of a Concession Fee or other payment made to City for improvements to the Stadium. However, PSP acknowledges and agrees that in the absence of a Concession Fee or other payment from PSP sufficient for major capital improvements or repairs to the City Facilities, City will not be required to replace the electronic scoreboard; however, minor repairs required for the electronic scoreboard, if such repairs can be performed by City staff, will be provided as may be reasonably necessary. 2.1.5 Real and Personal Property Taxes In addition to all other payments herein reserved, PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment, and all other personal property of PSP located in the Stadium. 2.2 PSP Staff 2.2.1 For purposes of this Agreement PSP Staff shall include all agents, licensees, invitees, representatives, contractors, independent contractors, subcontractors, employees, coaches, and guest coaches. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 6 | Page 2.2.2 PSP shall have sole and absolute responsibility for the reasonable control and supervision of its staff to coach participants during the program. 2.2.3 PSP shall be responsible for the control and safety of its staff, subcontractors, volunteers, guest coaches, members, and guests within the City Facilities. 2.2.4 PSP shall be in and shall remain a member in good standing of the California Premier Collegiate League, the California Winter League, and the Power Summer Collegiate League, or such other leagues as approved by the City. City’s approval will not be unreasonably withheld. 2.2.5 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concessions stand equipment. 2.2.6 PSP is responsible for ensuring that all coaching staff is currently certified in CPR & First Aid training. City will provide and make available inside the Stadium an AED machine. 2.3 Facility Use The City shall make available to PSP the City Facilities from Sundays through Saturdays according to schedule of events as outlined in Exhibit A; subject to City’s right to use or lease to third parties the City facilities, which right the City may exercise in its sole and absolute discretion. City shall notify PSP within twenty-four (24) hours prior to exercising its right to use the City facilities under Section 2.1.1. 2.3.1 For purposes of this Agreement, City’s Public Works department and PSP shall conduct a walk-thru of the Stadium to verify the conditions prior to PSP taking possession. Upon PSP relinquishing Stadium to City, any damage or cleaning requirements, as determined at the sole discretion City, shall be satisfied by PSP. 2.3.2 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, and the sale of concessions during home games, and the promotion of City-approved events in addition to baseball. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights prior to and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. The City shall stock and clean all exterior restrooms prior to opening games of each season and after the Stadium is used for special events. PSP shall be responsible for any necessary restocking or Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 7 | Page cleaning of all restrooms during a PSP event or sponsored activity. At the end of each day on which a game is played, PSP shall be responsible for ensuring that all trash cans at the Stadium are emptied and that all litter thought the Stadium has been collected and properly disposed of. 2.3.3 PSP shall not use or permit to be used the City Facilities or any part thereof for any purpose or purposes other than the express purpose or purposes for which the City Facilities is hereby rented to PSP. In addition to the Stadium, this Agreement does allow PSP to use the Cerritos Field for baseball activities when requested in writing and granted by the Contracting Officer. PSP shall not sell or permit to be kept, used, displayed, or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies, or (b) any alcoholic beverages unless expressly approved in advance by the Contracting Officer 2.3.4 PSP shall not engage in any activity on or about the City Facilities that violates any environmental law and shall promptly, at PSP’s sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or cause directly or indirectly by PSP. The term “environmental law” shall mean any deferral, state, or local law, statute, ordinance, or regulation pertaining to health, industrial hygiene, or the environmental conditions on, under or about the City Facilities, as such laws are amended, and the regulations and administrative codes applicable thereto. The term “hazardous material” includes, without limitation, any material or substance that is (i) defined or listed as a “hazardous waste,” “hazardous substance,” or considered a waste, condition of pollution, or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and /or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contracting Officer of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.4 Concession and Ticket Sales 2.4.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment, and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball Stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 8 | Page helmets. The City reserves the right to retain concessions for City- sponsored events or any third party events. 2.4.2 All rates charged for admission to the Stadium for home games and tournament games and for the sale of concessions shall be uniform, except that PSP shall provide discounted admission prices for children under twelve (12), students, and adults over sixty-five (65) years of age, and subject to the prior approval of the Contracting Officer, which approval shall not be unreasonably withheld. The standard used by the Contracting Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contracting Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contracting Officer and justify the prices then in effect, if the Contracting Officer determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the Contracting Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contracting Officer. All rates for the sale of tickets and concession items are to be submitted to the Contracting Officer for approval prior to any promotion or publication and said rates. 2.5 Advertising 2.5.1 Third Party Advertising PSP shall have the exclusive right to place PSP banners and promotional advertising signs on the outfield fence of the City Facilities at locations approved in advance by the Contracting Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall be removed upon termination of the Agreement. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. City authorizes PSP to hang PSP signage at the entrance of the Stadium, in sizes and locations approved by the Contracting Officer. All banners and promotional advertising on behalf of third parties or in other areas of City Facilities not expressly permitted as outlined in Exhibit C, shall be subject to the permitting process, fees, and approval of the City’s designated permitting department, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or rentals of the Stadium by third parties. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 9 | Page 2.5.2 PSP Advertising and Promotion PSP shall promote the Stadium and its Team in consultation with the Contracting Officer. The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications, and signs. The City shall be identified on a credit line prominently presented on the PSP’s website page. There shall be a hyperlink from PSP’s website to the City’s website at www.palmpsringsca.gov. The Parties agree that said link may be framed whereby material or pages form the linked website appear in a frame on the site which creates the link. Parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy, or completeness of materials contained on their respective websites and agree to hold each other harmless from any special indirect, incidental, or consequential damages that may arise from the use of or the inability to use the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or PSP. 2.5.3 Presenting Sponsor The City shall be positioned as “Presenting Sponsor” in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full-page four-color advertisement on the inside of the PSP’s official program for marketing and promotion purposes. 2.6 Repairs and Maintenance 2.6.1 PSP shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium and the adjacent parking facilities, sidewalks and landscaping in a clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium, PSP shall be deemed to have accepted the Stadium as being in a clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a clean and sanitary condition, reasonable use and wear thereof, and damage by fire, Act of God, or by the elements excepted. PSP shall keep and maintain the Cerritos Field, adjacent parking facilities, sidewalks and landscaping in a clean and orderly condition and state of repair, including, but not limited to, cleaning the field and removing all debris and litter from the field after practices. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 10 | Page 2.6.2 For purposes of this Agreement, the City’s Public Works department hereby agrees to mow, water, seed, Laser Level, and otherwise maintain the playing fields of the City Facilities in a condition satisfactory as outlined in Exhibit B to conduct baseball games, provided that PSP shall be responsible for preparation of the infield for all home games and tournament games. The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis, to be operable at the time of all home games and tournament games. PSP agrees at its sole cost and expense to replace the light bulbs and fixtures in all areas but playing fields. The City shall also maintain all electrical repairs, structural repairs, and overall maintenance of the Stadium. City is responsible for Capital Improvement Projects to the City Facilities and additional deferred maintenance as deemed landlord responsibility with $75,000 maximum annual budget. The City shall be responsible for cleaning the Stadium to a clean and orderly condition after third - party events and prior to the start of each baseball season no later than three (3) days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contracting Officer. PSP shall not contact the landscape maintenance contractor directly. Parties agree that during this contractual period the City Facilities will be periodically closed for overseeding and Stadium lighting replacement projects, and Stadium will be unavailable for use. City shall notify PSP with the schedules as available. City shall schedule and allow use of Cerritos Field, if accessible during this time. 2.6.3 City agrees to conduct Laser Leveling of the sports fields biennially, commencing in the year 2023. City shall be responsible for selecting a qualified contractor to perform the Laser Leveling services. City shall bear the cost of the Laser Leveling services conducted in the odd-numbered years, beginning in 2023. Tenant shall be responsible for field prep for all home games and tournament games on both Stadium and Cerritos Fields (See Section 2.6.2), which includes the removal of rocks, debris, and grading of the fields for the purpose of overall site safety and aesthetics. This shall be done during the biennial and intervening years. Both parties shall mutually agree in written consent should any large-scale projects be necessary in the intervening years. 2.6.4 City’s Public Works department agrees to maintain the standard, plumbing systems within the Stadium. PSP shall have sole responsibility for costs Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 11 | Page incurred by City for the clearing of obstructions caused by disposing of inappropriate objects in the toilets, lavatories, drinking fountains, and showers. 2.7 Utilities 2.7.1 The City shall provide and maintain water for the City Facilities at the City's sole expense. 2.7.2 PSP will be responsible for 100% of all electrical costs incurred for the Stadium offices, locker rooms, outfield lights, and concessions, utilizing the existing meters at the Stadium to track PSP' s electrical usage, including for the air conditioning (A/C), the interior lights and outlets for the Stadium, the outfield lights, and the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. PSP will be responsible for costs associated with Cerritos Field lighting should PSP request to utilize the field outside the terms of this Agreement. City will be responsible for Cerritos Field lighting during City Facilities closures as outlined in Section 2.6.2. 2.7.3 PSP will be responsible for the gas costs for the Stadium, which is also metered. 2.7.4 PSP agrees to pay to the City 100% of all electrical and gas costs for the Stadium at current utility rates. Parks and Recreation department will prepare an invoice for billing to PSP. Payment for electrical and gas costs shall be made directly to the City and will be due within ten (10) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 2.2.2. of this Agreement. 2.7.5 If a PSP game must be cancelled due to a Stadium malfunction, resulting from the City’s reasonable fault, and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, with the exception of malfunctions due to Force Majure, for the purpose of this Agreement Force Majure shall mean any unforeseeable circumstance which is beyond the control of the City, or any unavoidable event, even if foreseeable, as a result of which City is unable to perform its obligations, in whole or in part, under this Agreement, PSP will receive a one thousand dollar ($1,000) electrical credit from the City. 2.8 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 12 | Page consent of the Contracting Officer, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contracting Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP' s sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP' s sole cost and expense so that the Stadium can be surrendered in a good, clean, and sanitary condition as required by Section 2.3.1 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished, or obligation incurred or alleged to have been incurred by PSP. 2.9 Damage and Destruction In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadium or (b) the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair the Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.10 Compliance with Law PSP shall use the City Facilities and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any federal, state, or local governmental agency having jurisdiction in effect. 2.11 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the use of the City Facilities and conduct of its operations thereon, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed or imposed against City hereunder. 2.12 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 13 | Page may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 2.13 Prohibited Activities 2.13.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contracting Officer. 2.13.2 Vending machines are prohibited. 2.13.3 The sale of tobacco and gum is prohibited. 2.13.4 The sale of any item which is contained in a glass container is prohibited. 2.13.5 All other activities when specified by the Contracting Officer in writing and delivered to PSP are prohibited. 2.14 Security and Access Contracting Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 2.15 Conduct PSP understands that the City is a public entity under the laws of the State of California, and that the City’s purpose in entering a cooperative Agreement is to provide its residents with recreational activities in a manner that will foster a sense of community, security, fun, and fair play. PSP agrees to conduct themselves in a manner that will further these goals as outlined in the Code of Conduct (Exhibit D). PSP further acknowledges that failure to do so may result in immediate termination of this Agreement. 3. INSURANCE AND INDEMNIFICATION 3.1 PSP shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: 3.1.1 Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis. A combined single limit of $1,000,000.00. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 14 | Page 3.1.2 Workers’ Compensation Insurance. To the extent required by Labor Code section 3700, PSP shall procure and maintain workers’ compensation insurance shall be procured and maintained in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both PSP and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any person retained by PSP in the course of carrying out the work or service contemplated in this Agreement. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees, and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, PSP shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 3.1 to the Contracting Officer. No work or services under this Agreement shall commence until PSP has provided City with Certificates of Insurance or other forms of coverage evidencing the above insurance coverages said certificates of insurance of binders are approved by City. PSP agrees that the provisions of this Section 3.1 shall not be construed as limiting in any way the extent to which PSP may be held responsible for the payment of damages to any persons or property resulting from PSP activities or the activities of any person or persons for which PSP is otherwise responsible. In the event PSP subcontracts any portion of the work in compliance with Section 8.4 of this Agreement, the contract between PSP and such subcontractor shall require the subcontractor to maintain the same policies of insurance that PSP is required to maintain pursuant to this Section 3.1. 3.2 Mutual Indemnification PSP agrees to indemnify and defend the City, its officers, agents and employees against and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein “claims or liabilities) that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the activities at the Facility of PSP, its agents, employees or invitees, or arising from the negligent acts or omissions of PSP, or arising from PSP’s negligent performance of or failure to perform any term, provisions, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 15 | Page PSP shall defend any action or actions filed in connection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attorney’s fees incurred in connection therewith: PSP shall promptly pay any judgement rendered against the City, its officers, agents or employees for any claims or liabilities arising out of or in connection with negligent performance of or failure to perform such work, operations or activities of PSP hereunder; and PSP agrees to save and hold the City, its officers, agents and employees harmless therefrom: In the event the City , its officers, agents or employees, is made a party to any action or proceeding filed or prosecuted against PSP for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of PSP hereunder, PSP agrees to pay City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees, in such action or proceeding, including, but not limited to, legal costs and attorneys’ fees. 3.3 Sufficiency of Insurer or Surety Insurance of bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, PSP agrees that the minimum limits of the insurance policies and the performance bond required by this Section 3 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that PSP shall have the right to appeal a determination of increased coverage by the Risk Manager, to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 4. WAIVER OF UTILITY FAILURE 4.1 PSP expressly waives any and all claims to the City for compensation for any and all losses or damages sustained for any reason or any defect, deficiency or impairment of any utility system, water supply system, drainage system, electrical apparatus or wires serving the City Facilities with respect to the loss of the facility for PSP functions. 4.2 PSP hereby waives, discharges, and holds harmless the City, its elected and appointed offices, employees, and agents, for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency, or impairment in the provision of utilities to the Stadium. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 16 | Page 5. ENFORCEMENT OF AGREEMENT 5.1 California Law This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and PSP covenants, and agrees to submit to the personal jurisdiction of such court in the event of such action. 5.2 Disputes In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party: provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of the section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party’s right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City’s or PSP’s right to terminate this Agreement without cause pursuant to Section 5.7. 5.3 [Reserved] 5.4 Waiver No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party’s consent to or approval of any act by the other party requiring the party’s consent or approval shall not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same of any other provision of this Agreement. 5.5 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 17 | Page 5.6 Legal Action In addition to any other rights or remedies, either party may take legal action in law or in equity, to cure, correct or remedy and default, to recover damages for any default, to compel specific performance of this Agreement to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 5.7 Termination Prior to Expiration of Term This Section shall govern any termination of this Agreement except as specifically provided in the following section for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to PSP, except that where termination is due to the fault of PSP, the period of notice may be such shorter time as may be determined by the Contracting Officer. In addition, PSP reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to City, except that where termination is due to the fault of City, the period of notice may be such shorter time as PSP may determine. 5.8 Attorney’s Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and, in addition, a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigation such action, taking dispositions and discovery, and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 6. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 6.1 Non-Liability of City Officers and Employees No officer or employee of the City shall be personally liable to PSP, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 6.2 Non-Liability of PSP Officers and Employees No officer or employees of PSP shall be personally liable to the City, or any successor in interest, in the event of any default or breach by PSP or for any Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 18 | Page amount that may become due to City or to its successor, or for breach of any obligation of the terms of this Agreement. 6.3 Conflict of Interest No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his/her financial interest or the financial interest of any corporation, partnership or association in which he is directly or indirectly interested, in violation of any state statute or regulation. PSP warrants that it has not paid or given an shall not pay or give any third party any money or other consideration for obtaining this Agreement. 6.4 Covenant Against Discrimination In connection with its performance under this Agreement, PSP shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in City contracting. 7. MISCELLANEOUS PROVISIONS 7.1 Notice Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contracting Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743, and, in the case of PSP, to the person at the address designated in Section 8.1. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 19 | Page time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 7.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 7.3 Integration; Amendment It is understood that there are no oral Agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all precious negotiations, arrangements, Agreements and understandings, if any, between the parties, and non shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 7.4 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in the Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is no material that this invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 7.5 Corporate Authority The persons on executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 7.6 California Labor Code Requirements: A. PSP is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, PSP agrees to fully comply with such Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 20 | Page Prevailing Wage Laws. PSP shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. 8. COORDINATION OF WORK 8.1 Representative of PSP: The following principals of PSP are hereby designated as being the principals and representatives of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke, President Power Baseball, CWL, PSCL C/O 1901 E. Baristo Rd. Palm Springs, CA 92262 (760) 778-4487 | astarke@palmspringspowerbaseball.com It is expressly understood that the ownership, experience, knowledge, capability, and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement, except as may be permitted in Section 8.3. 8.2 City Representative: PSP shall be responsible for keeping the Contracting Officer fully informed of PSP's use of the City Facilities as authorized by this Agreement. PSP shall refer any decisions that must be made by City to the Contracting Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contracting Officer. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 21 | Page The Contracting Officer is hereby defined to be the designee of the City Manager and is the representative to coordinate with PSP regarding operational matters at the facility: Contracting Officer: Director of Parks & Recreation 401 S. Pavilion Way, Palm Springs, CA 92262 (760) 323-8272 | parksandrec@palmspringsca.gov 8.3 Prohibition Against Subcontracting or Assignment The ownership, experience, knowledge, capability and reputation of PSP, its principals and employees, were substantial inducement for City to enter into this Agreement. Therefore, PSP shall not contract with any other entity or strategic business partner to perform, in whole or in part, the services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise without the prior written approval of City. In the event of any such unapproved transfers, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release PSP or any surety of PSP of any liability hereunder without the express consent of City. 8.4 Independent Contractor Neither City nor any of its employees shall have any control over the manner, mode or means by which PSP, its agents, or employees, preforms the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of PSP employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. PSP shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contract with only such obligations as are consistent with the role. PSP shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of PSP in its business or otherwise or a joint venture or a member of any joint enterprise with PSP. 9. TERM 9.1 Unless earlier terminated in accordance with Section 5.7 of this Agreement, the term of this Agreement shall commence on August 1, 2023, for a term of five years. At the discretion of the Contracting Officer, the Agreement may be renewed with an extension for two (2) additional, two-year (2-year) terms under the same terms Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 22 | Page and conditions stated herein, except for any change such as fees and charges for the use of certain facilities as specified in Section 2. Note: at the discretion of the Contracting Officer, the City reserves the right to conduct an Agreement evaluation prior to the termination date to address issues and concerns. The purpose of the evaluation is to determine necessary changes to fees and charges, as well as any terms and conditions for future Agreements. [SIGNATURES TO FOLLOW] Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 23 | Page IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS Palm Springs Power Baseball “PSP” Lauri Aylaian Andrew Starke Interim Director, Parks & Recreation President, Palm Springs Power Baseball Scott Stiles City Manager APPROVED AS TO FORM: _____________________________ Jeff Ballinger City Attorney ATTEST: _____________________________ Brenda Pree City Clerk Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 9/6/2024 9/11/2024 9/11/2024 9/12/2024 9/12/2024 55575.18185\42603231.1 24 | Page EXHIBIT A SCOPE OF WORK I. RECREATIONAL ACTIVITY DESCRIPTION PSP shall set up recreational activity and provide professional instruction services in a manner consistent with industry standards for Minor and Independent League professional and collegiate-level baseball. II. FACILITY PSP shall utilize the City Facilities for conducting baseball games, tournaments, and storage of related equipment during the contractual period. III. CALENDAR SCHEDULE - EXCLUSIVE USE Exclusive use of the Stadium for these purposes shall commence at 6:00 AM on the date of such home game or tournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. The standard schedule is as follows: FY2024 Schedule: TEAM DURATION DATES California Winter League approximately twenty-five (25) dates of the instructional league January 22, 2024 through February 19, 2024 Palm Springs Youth Academy approximately fifty (50) dates practices, workouts October 2023 through December 2023, and March 2024 through May 2024 (Dates TBD) Collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), for the California Premier Collegiate League approximately forty-five (35) home games May 28, 2024, through July 22, 2024 Palm Springs Collegiate League approximately thirty-five (35) dates of the developmental league June 6, 2024- July 11, 2024 Collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), for the California Premier Collegiate League maximum of three tournaments hosted by the Team Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 25 | Page FY2025 Schedule: TEAM DURATION DATES California Winter League approximately twenty-five (25) dates of the instructional league January 20, 2025 through February 17, 2025 Palm Springs Youth Academy approximately fifty (50) dates practices, workouts October 2024 through December 2024, and March 2025 through May 2025 (Dates TBD) Collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), for the California Premier Collegiate League approximately forty-five (35) home games May 28, 2025, through July 22, 2025 Palm Springs Collegiate League approximately thirty-five (35) dates of the developmental league June 9, 2025- July 11, 2025 Collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), for the California Premier Collegiate League maximum of three tournaments hosted by the Team All future FY schedules to be submitted at a minimum of 14 City business days prior to the end of each fiscal year. IV. CALENDAR SCHEDULE – NON-EXCLUSIVE USE City reserves for itself the exclusive use of the City Facilities for the following events, dates are subject to change: FY2024 Schedule: CITY EVENT DATES Palm Springs Police Department National Night Out Tuesday, October 3, 2023 Wine & Food Festival November 10-13, 2023 Men's Senior Baseball League Martin Luther King, Jr. Weekend 2024 (Saturday – Monday) Family Fun Fest presented by the Palm Springs Library March 27, 2024 Camp Out Night TBD (mid-April 2024) Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 26 | Page San Diego Youth Baseball League Memorial Day Weekend 2024 (Saturday – Monday) July 4th Events (partnered with PSP, with PSP holding its All American July 4th Game prior to the Fireworks Event) * Event setup commencing on Cerritos Field on July 2, 2024, through July 4, 2024. *Including the exclusive right to control and monitor admissions at all gates and the conditions by which all attendees are authorized to bring personal items, food and beverages (not including alcoholic beverages), or other accessory items into the Stadium after the All-American July 4th Game, during the Fireworks Event. FY2025 Schedule: CITY EVENT DATES Palm Springs Police Department National Night Out TBD (October 2024) Wine & Food Festival November 11-12, 2024 Men's Senior Baseball League Martin Luther King, Jr. Weekend 2025 (Saturday – Monday) Family Fun Fest presented by the Palm Springs Library TBD by PSUSD Spring Break Schedule April 9 & 16, 2025 Camp Out Night TBD (mid-April) San Diego Youth Baseball League Memorial Day Weekend (Saturday – Monday) July 4th Events (partnered with PSP, with PSP holding its All American July 4th Game prior to the Fireworks Event) * Event setup commencing on Cerritos Field on July 2, 2025 through July 4, 2025; and FY26 & FY27 City Special Events October 29, 2025 City Special Events October 31, 2025 City Special Events November 7-10, 2025 All future FY schedules to be submitted at minimum 14 City business days prior to the end of each fiscal year. V. FEES PSP shall pay all fees and charges as defined in Section 2 of Agreement during the term of this Agreement. DESCRIPTION TERMS AMOUNT Security Deposit prior to use $1000 Rental Fee monthly $1000+CPI-U Utilities monthly Current utility rates VI. COMMUNITY EVENTS PSP may be asked to provide demonstrations and/or educational sessions at City of Palm Springs Parks & Recreation Department community events and meetings, as Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 27 | Page requested. Activities may be scheduled up to two (2) times per year during the term of this Agreement with no additional compensation to the PSP. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 28 | Page EXHIBT B Field Preparation Diagram 1 outlines a regulation 90ft. field layout of infield area. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 29 | Page Exhibit C Third Party Advertising It is City’s policy that its City Facilities and any and all other forums for advertising under this policy are not public forums for political discourse or expressive activity. These areas are not intended to provide a forum for all types of advertisements, but only the limited advertisements accepted under the policy. All advertising shall be subject to this uniform viewpoint neutral policy. Excluded advertising: Copy may not be displayed and, if displayed, will be removed by City if it falls within the categories listed below. In excluding said advertising, City seeks to maintain a professional advertising. It further seeks to maintain an image of neutrality on political, religious and other issues that are not the subject of commercial advertising and may instead be the subject of public debate and concern. Subject thereto, a proposed advertisement will be excluded if City, in its sole discretion, determines it: 1. Contains defamatory, libelous or obscene matter. 2. Is false, misleading or deceptive. 3. Supports or opposes any labor organization or any action by, on behalf of or against any labor organization. 4. Relates to or promotes any illegal activity. 5. Contains implicit or explicit sexual references, pictures or text, or includes material harmful to minors. 6. Depicts or promotes the sale of tobacco products, any illegal products, service or entity and/or firearms. 7. Depicts or advocates violence. 8. Includes language that is obscene, vulgar or profane. 9. Demeans, degrades or has the effect of promoting discrimination against any group or individual on the basis of race, color, religion, national origin, age, sex, disability, ancestry or sexual orientation. 10.Opposes the nomination or election of a candidate for public office, the investigation, prosecution or recall of a public official or the passage of a levy or bond issue. Constitutes an unauthorized endorsement defined as advertising that implies or declares that City endorses a product, service, viewpoint, event or Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 30 | Page program. This definition does not include advertising for a service, event or program for which City is an official sponsor, co-sponsor or participant. 11.Constitutes a religious advertisement defined as advertising that contains direct or indirect reference to religion, a deity or which includes reference to the existence, nonexistence or other characteristics of a deity or any religious creed, denomination, belief, tenet, cause or issue relating to, opposing or questioning any religion. This includes text, symbols, images commonly associated with any religion or deity or any religious creed, denomination, belief, tenet, cause or issue relating to, opposing or questioning any religion. PERMITTED ADVERTISING In permitting limited advertising, City seeks only to allow tenant to earn revenue and other income to support the uses permitted in this agreement. That City does not desire to have its residents, visitors or users of its facilities subject to advertisements containing controversial material relating to political, religious or other issues about which public opinion can be widely divergent. To realize the maximum benefit from the sale of space, all advertising programs must be managed in a manner that will generate revenue while ensuring that the advertising does not discourage use of the City Facilities, does not diminish City’s reputation in the communities it serves and is consistent with the goal of providing safe and welcoming public spaces. 1. Commercial advertising has a sole purpose of promoting a business or to sell products, goods or services. It does not include advertising that both promotes a business or offers to sells products, goods or services and also conveys a political or religious message or can be construed as issue advocacy or which expresses an opinion or position. 2. Operations advertising is permitted. This is defined as advertising that promotes PSP and its services. 3. Governmental advertising is permitted. This is defined as advertising that promotes programs and events of governmental entities, political subdivisions and state agencies. 4. Entering into barter deals is permitted if City determines that it is a benefit to City or PSP. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 55575.18185\42603231.1 31 | Page EXHIBIT D CODE OF CONDUCT The City is committed to fostering a welcoming environment for its employees, residents, and visitors on City premises or engaging in City-related business. The intent of this Code of Conduct is for the City to define expectations of an individual or business conducting business on City premises or through the City providing services or programs. This Exhibit provides information to instructors, coaches, and City Facility users regarding standards of acceptable behaviors with respect to basic rights, as well as duty of good faith and fair dealing. TENANT IS EXPECTED TO DO THE FOLLOWING: • Demonstrate courtesy. • Behave in a responsible manner, always exercising self-discipline. • Respect the right and privileges of other participants, patrons, volunteers, and City staff. • Respect the property of others, including City property and facilities. • Cooperate with or assist the City staff in maintaining safety, order, and discipline. • Coordinate in a responsible and timely manner with City staff in addressing scheduling or other issues with program or participants. EXAMPLES OF UNACCEPTABLE BEHAVIORS INCLUDE THE FOLLOWING: • Any instance of any form of insubordination or undermining of authority of City staff. • Any form of threatening, coercive, or aggressive behavior toward participants, volunteers, or City staff, whether written (including text or email), verbally, or physically. • Engaging in loud, rude, unprofessional or aggressive behavior on City Property. • Defacing/damaging City property or the property of others. • Failure to conform to the laws and rules of the City of Palm Springs. This Code of Conduct applies to all persons participating in any program, class, service, or using a City facility managed and operated by the City of Palm Springs Department of Parks & Recreation. Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTR INSD WVD PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER: $ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 9/4/2024 (760) 325-2526 (760) 322-5970 36838 Palm Springs Power Baseball Club Inc. 1901 E. Baristo Road Palm Springs, CA 92262 A 1,000,000 X MP000401810049800 6/1/2024 6/1/2025 100,000 1,000 1,000,000 2,000,000 2,000,000 Location: Concession Stand Only - 1901 E. Baristo Rd, Palm Springs, CA. The City of Palm Springs is named as additional insured per form# CG2010 04/13 when required by a written contract. City of Palm Springs Attn: City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 PALMSPR-05 GGONZALES Weingarten & Hough, Inc.41602 Indian Trail STE 1Rancho Mirage, CA 92270 Mesa Underwriters Spec Ins Co X X X Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 SP ISSUE DATE: 02-01-2024 1954793-2024 3 02-01-2025 02-01-2024/02-01-2025 CITY OF PALM SPRINGS SP 401 S PAVILION WAY PALM SPRINGS CA 92262-7947 30 30 EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #0015 ENTITLED ADDITIONAL INSURED EMPLOYER EFFECTIVE 2023-02-01 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. NAME OF ADDITIONAL INSURED: CITY OF PALM SPRINGS ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 02-01-2023 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. PALM SPRINGS POWER BASEBALL CLUB INC. SP 1901 E BARISTO RD PALM SPRINGS CA 92262 M0411 PRINTED : 01-17-2024 Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 Docusign Envelope ID: 19A3678D-90CF-458B-BDBD-4FF0ACFEAA22 AMENDMENT NO. 1 TO FACILITIES USE AGREEMENT This Amendment No. 1 ("Amendment No. 1") to the Facilities Use Agreement, is made and entered into as of this a day off, 2021, by and between the City of Palm Springs, a California charter city and municipal corporation ("City") and Palm Springs Power Baseball Club, Inc., a California corporation, ("PSP"). City and PSP are sometimes herein referred to individually as "Party" and collectively as the "Parties". RECITALS WHEREAS, the City is the owner of that certain real property located at 1901 East Baristo Road, Palm Springs, CA also known as the Palm Springs Stadium; and WHEREAS, Parties entered into a Facilities Use Agreement ("Agreement"), on July 24, 2018, whereby the City provided PSP the nonexclusive use of the Palm Springs Stadium; and, WHEREAS, additionally the Parties would like to expand the term of the Agreement for an additional two-year term. NOW, THEREFORE, in consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Amendment No. 1. SECTION 2. Section 4.2. Term, of the Agreement is hereby amended to read as follows: "The term of this Agreement shall commence on August 1, 2021, terminating on July 31, 2023. At the sole discretion of the City Manager, this Agreement may be extended for an additional, two- year optional terms upon expiration of this term. Alternatively, at the City Manager's discretion, this Agreement may be extended on a month -to -month basis subject to all of the terms and conditions contained herein," 55575 I S I M4271732.1 SECTION 3. Full Force and Effect. All terms, conditions, and provisions of the Operation Agreement, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 1 and any provisions of the Operation Agreement, the provisions of this Amendment No. 1 shall in all respects govern and control. From and after the date of this Amendment No. 1, whenever the term "Agreement" or "Contract" appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1. SECTION 4. The persons executing this Amendment No. 1 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said Party is bound. IN WITNESS WHEREOF, the Parties have executed this Amendment No.1 on the dates stated below. "CITY" City of Palm Springs Date: t I� 1212U Lt By: Arc- 5�2 92- Jus i Clifton City Manager APPROVED AS TO FORM: By: Je ey allin City Attorney ATTEST: By: n ny J Mej , MM ity Clerk "PSP" Palm Springs Power Baseball Club, Inc. Date: -fly ' 2. 1 By: 'Signature A41 PL.,) ` 4,,r k Q Printed Name/Title 55575 1818504271732 1 FACILITIES USE AGREEMENT This Facilities Use Agreement ("Agreement") is made and entered into this ' ! &day of 5 , 2018, by and between the CITY OF PALM SPRINGS ("City"), a California charter city and municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB, INC., ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. It is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium and related facilities, (hereinafter the "Stadium"), the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide an instructional league for Minor and Independent League professional players and competitive collegiate - level baseball entertainment for residents and visiting youth and adults at the Stadium. 1A.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 1 B. GRANT OF NON-EXCLUSIVE USE 113.1 The City grants PSP the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 1 B.2 PSP shall have the exclusive use of the offices, locker rooms and concession located at the Stadium subject to the terms and conditions more particularly set form below. 1 B.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all baseball games held for or on behalf of PSP during the term of this Agreement. Page 1 of 23 1 BA PSP shall have the exclusive use of the entire Stadium for the following specific periods of time: a) approximately twenty-five (25) dates of the instructional league, for the California Winter League, extending from the third or fourth Monday in January (i.e. January22, 2018) through the third Sunday in February(i.e. February 18, 2018); and b) approximately fifty-four (54) dates of the Palm Springs Youth Academy practices, on Mondays and Thursdays, extending from third or fourth Monday in January (i.e. January 22, 2018) through July 31; and c) approximately forty-five (45) home games of the collegiate ail -star baseball team owned by PSP, known as the Palm Springs Power ("Team"), during the baseball season for the Southern California Collegiate League, extending from the Tuesday following Memorial Day (i.e. May 29, 2018) through July 31; d) approximately thirty-five (35) dates of the developmental league, for the Palm Springs Collegiate League, extending from the first or second week of June through the middle of July. (i.e. June 6, 2018- July 11, 2018); e) a maximum of three tournaments hosted by the Team. Exclusive use of the Stadium for these purposes shall commence at 6:00 a.m. on the date of such home game or tournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team, at which time an updated Exhibit "A", Calendar Schedule, will be prepared by the City and provided back to PSP. PSP may request additional use of the Stadium for events other than baseball; however, City does not guarantee availability of the Stadium for any additional use not already authorized under this Agreement, per attached Exhibit "A", Calendar Schedule. The City reserves for itself the exclusive use of the Stadium, including the exclusive right to control and monitor admissions at all gates and the conditions by which all attendees are authorized to bring personal items, food and beverages (not including alcoholic beverages), or other accessory items into the Stadium, during the following periods of time: 1) Martin Luther King Weekend (Saturday — Monday) for use by the Men's Senior Baseball League; 2) Library —Family Fun Fest the last Wednesday in March (i.e. Wednesday, March 28, 2018); Page 2 of 23 ❑A Rel 3) Memorial Weekend (Saturday — Monday) for use by the San Diego Youth Baseball League; and 4) Fourth of July Fireworks Event (partnered with PSP, with PSP holding its All American July 4th Game prior to the Fireworks Event), including the exclusive right to control and monitor admissions at all gates and the conditions by which all attendees are authorized to bring personal items, food and beverages (not including alcoholic beverages), or other accessory items into the Stadium after the Game during the Fireworks Event; and 5) Palm Springs Police Department National Night Out the first Tuesday in October (i.e. Tuesday, October 2, 2018) PSP may have non-exclusive use of the Stadium at all other periods of time, subject to advance notice to the City. City reserves the right to designate use of the Stadium during periods of non-exclusive use upon notice to PSP, and provided PSP has not previously notified City of its intended use at the same period of time. 1 B.5 For the period commencing with the first home game of the Team and ending with the last home game of the Team, or the last tournament to be hosted by the Team, whichever is later, PSP shall have the exclusive right to use the locker rooms located at the Stadium. 1 B.6 During the term of this Agreement, PSP shall remain a member in good standing of the Southern California Collegiate Baseball League, the California Winter League and the Palm Springs Collegiate League, or such other leagues as approved by the City. 1 B.7 Within five (5) days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the offices and interior storage rooms, unless PSP has previously notified City of its intended non-exclusive use of the Stadium commencing upon the end of Season or of any tournament, to which City has approved such use. PSP's schedule shall take precedence in all scheduling of the Stadium. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 1 B.8 Unless PSP has obtained City's prior approval for continued non-exclusive use of the Stadium for the period extending from the end of California Winter League Season and the start of the Southern California Collegiate League, City shall Page 3 of 23 C relinquish the Stadium to PSP one week prior to opening Day for the summer season. However, the field can still be rented out by the City for other baseball events if PSP is not using the field. City shall relinquish the Stadium to PSP on an as -scheduled basis for tournaments and special events approved by the City, and PSP shall relinquish the Stadium back to the City within 48 hours of conclusion of any tournament or special event. 1 B.9 PSP shall prepare and submit to City an updated Calendar Schedule for calendar year 2019 on or before December 1, 2018, and annually thereafter, throughout the term of this Facility Use Agreement. City and PSP shall meet to discuss the proposed Calendar Schedule, and to the extent the City's exclusive use dates as identified herein, or any other such dates subsequently identified by the City for its exclusive use, are appropriately identified, the City will review the proposed Calendar Schedule, whose approval will not be unreasonably withheld. Each new Calendar Schedule approved by the City shall be filed with the City Clerk, and thereupon be considered a replacement of Exhibit "A" to this Facility Use Agreement for the corresponding calendar year. 2. AREAS OF RESPONSIBILITY 2.1 Use 2.1.1 City and PSP shall conduct a walk-thru of the Stadium to verify the condition prior to PSP taking possession. Upon PSP relinquishing Stadium to City, any damage or cleaning requirements, as determined at the sole discretion of City, shall be satisfied by PSP. 2.1.2 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, and the sale of concessions during home games, and the promotion of City -approved events in addition to baseball. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights prior to and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. The City shall stock and clean all exterior restroom prior to each game day, and PSP shall pay City $50 per game day for this service. PSP shall be responsible for any necessary restocking or cleaning of restrooms during an event. At the end of each day on which a game is played, PSP shall be responsible for ensuring that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.3 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for Page 4 of 23 which the Stadium is hereby rented to PSP. In addition, this Agreement does allow PSP to use the Cerritos Field for baseball activities when requested and granted by the City. PSP shall not sell or permit to be kept, used, displayed, or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies or (b) any alcoholic beverages unless expressly approved in advance by the Contract Officer. 2.1.4 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concession stand equipment. 2.1.5 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff, members and guests use the Stadium. 2.1.6 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP. The term "environmental law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term "hazardous material" includes, without limitation, any material or substance that is (i) defined or listed as a "hazardous waste", "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contract Officer of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment, and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets. The City reserves the right to retain concessions for City -sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and Page 5 of 23 tournament games and for the sale of concessions shall be uniform, except that PSP shall provide discounted admission prices for children under twelve (12), students and adults over sixty-five (65) years of age, and subject to the prior approval of the Contract Officer, which approval shall not be unreasonably withheld. The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall be removed upon termination of the Agreement. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at wwwgalmspringsca.gov. The parties agree that said link may be framed whereby material or pages from the linked website appear in a frame on the site which creates the link. The parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy or completeness of materials contained on their respective websites and agree to hold each other harmless from any special, indirect, incidental or consequential damages that may arise from the use of or the inability to use the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or Page 6 of 23 I-W 2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full -page four-color advertisement on the inside of the PSP's official program for marketing and promotion purposes. 2.4 Repairs and Maintenance 2.4.1 PSP shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium and the adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium, PSP shall be deemed to have accepted the Stadium as being in a good, neat, clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 2.4.2 The City hereby agrees to mow, water, seed and otherwise maintain the playing field of the Stadium in a condition satisfactory to conduct independent league baseball games, provided that PSP shall be responsible for preparation of the infield for all home games and tournament games. The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis, to be operable at the time of all home games and tournament games. The City shall also maintain all electrical repairs, structural repairs, and overall maintenance of the Stadium. The City shall be responsible for cleaning the Stadium to a good, neat, clean and orderly condition after third - party events and prior to the start of each baseball season no later than three (3) days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contract Officer. PSP shall not contact the landscape maintenance contractor directly. 2.5 Utilities 2.5.1 The City shall provide and maintain water for the Stadium at the City's sole expense. 2.5.2 PSP will be responsible for 100% of all electrical costs incurred for the Stadium offices, locker rooms, outfield lights, and concessions, utilizing the Page 7 of 23 existing meters at the Stadium to track PSP's electrical usage for the air conditioning (A/C), the interior lights and outlets for the Stadium, the outfield lights, and the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. 2.5.3 PSP will be responsible for the gas costs for the Stadium, which is also metered. 2.5.4 PSP hereby waives, discharges, and holds harmless the City, its elected and appointed offices, employees and agents, for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency or impairment in the provision of utilities to the Stadium. 2.5.4 Payment for electrical and gas costs shall be made directly to the City and will be due within ten (10) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.5.6 If a PSP game must be cancelled due to a Stadium malfunction, such as the lights not working or the sprinklers not turning off, and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, PSP will receive a one thousand dollar ($1,000) electrical credit from the City. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the Contract Officer, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contract Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by PSP. 2.7 Damage and Destruction Page 8 of 23 101 In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadium or (b) the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair the Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.8 Compliance with Law PSP shall use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.9 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 2.10 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 2.11 Prohibited Activities. 2.11.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.11.2 Vending machines are prohibited. 2.11.3 The sale of tobacco and gum is prohibited. 2.11.4 The sale of any item which is contained in a glass container is prohibited. 2.11.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.12 Security and Access Page 9 of 23 Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 3. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental 3.1.1 RENT: If not previously paid, PSP shall promptly pay to the City the total rent due and payable under that certain Facility Use Agreement approved by the City Council on January 24, 2018, which commenced upon PSP's use of the Stadium on January 22, 2018, (the total prior rental fee due and payable prior to commencement of this Facility Use Agreement is $6,250). Under the terms of this Facility Use Agreement, PSP agrees to pay to the City as rental for said premises the sum of One Thousand Dollars ($1,000) per month for use of the Stadium and/or Cerritos Field. The rental fee shall be paid within five (5) days to the City for each month of Stadium and/or Cerritos Field use as authorized by this Agreement for the period commencing August 1, 2018, through the term of this Agreement. 3.1.2 UTILITIES: If not previously paid, PSP shall promptly pay to the City the total utility costs due and payable under that certain Facility Use Agreement approved by the City Council on January 24, 2018, which commenced upon PSP's use of the Stadium on January 22, 2018. Under the terms of this Facility Use Agreement, PSP agrees to pay to the City 100% of all electrical and gas costs for the Stadium at current utility rates, in accordance with Section 2.5 of this Agreement. City will prepare an invoice for billing to PSP. Upon receipt of such billing, PSP shall promptly pay to the City the total utility costs for the preceding month, and not later than thirty (30) days after receipt thereof. 3.2 Security Deposit PSP has provided City with a security deposit in the sum of One Thousand Dollars ($1,000). City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout Page 10 of 23 the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City underthis Agreement, shall be made after sixty (60) days have elapsed following the effective date of said termination. 3.3 Concession Fee The rental fee paid by PSP pursuant to Section 3.1 herein shall be in lieu of a Concession Fee or other payment made to City for improvements to the Stadium. However, PSP acknowledges and agrees that in the absence of a concession fee or other payment from PSP sufficient for major capital improvements or repairs to the Stadium, City will not be required to replace the electronic scoreboard; however, minor repairs required for the electronic scoreboard, if such repairs can be performed by City staff, will be provided as may be reasonably necessary. 3.4 Real and Personal Property Taxes In addition to all other payments herein reserved, PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment and all other personal property of PSP located in the Stadium. 3.5 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by PSP not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.6 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non -usurious rate permitted by law, in which case interest shall be the maximum non -usurious rate allowed by law at the time the sum became due. Page 11 of 23 E6 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement, the term of this Agreement shall commence on August 1, 2018, for a period of three (3) years, terminating on July 31, 2021. At the sole discretion of the City Manager, this Agreement may be extended for two (2) additional, two-year optional terms upon the expiration of the original term. Alternatively, at the City Manager's discretion, this Agreement may be extended on a month -to -month basis subject to all of the terms and conditions contained herein. 5. COORDINATION OF WORK 5.1 Representative of PSP. The following principals of PSP are hereby designated as being the principals and representatives of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). PSP shall be responsible for keeping the Contract Officer fully informed of PSP's use of the Stadium and related facilities as authorized by this Agreement. PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, education, capability, and reputation of PSP, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, PSP shall not contract with any other individual or entity to perform any services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. With respect to the foregoing, PSP may subcontract or assign the concession sales to a Page 12 of 23 licensed vendor upon prior written approval by the Contract Officer. 5.4 Independent Contractor The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make PSP a City employee. A. During the use of the Stadium and related facilities as authorized by this Agreement, PSP and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing any work or services as authorized under this Agreement on behalf of PSP shall at all times be under PSP's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of PSP or any of its officers, employees, or agents, except as set forth in this Agreement. City shall have no voice in the selection, discharge, supervision, or control of PSP's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. PSP shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers' compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of PSP in its business or otherwise a joint venturer or a member of any joint enterprise with PSP. B. PSP shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City. C. No City benefits shall be available to PSP, its officers, employees, or agents in connection with any performance under this Agreement. Except for payments otherwise due to PSP as might be provided for in this Agreement, City shall not pay salaries, wages, or other compensation to PSP for the performance of any work or services as authorized by this Agreement. City shall not be liable for compensation or indemnification to PSP, its officers, employees, or agents, for injury or sickness arising out of performing any work or services in the use of the Stadium and related facilities. If for any reason any court or governmental agency determines that the City has financial obligations in this Agreement of any nature relating to salary, taxes, or benefits of PSP's officers, employees, servants, representatives, subcontractors, or agents, PSP shall indemnify City for all such financial obligations. 6. INSURANCE INDEMNIFICATION AND BONDS 6.1 Types of Insurance. PSP shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from PSP's use of the Stadium and other facilities as Page 13 of 23 authorized under this Agreement, including PSP's agents, representatives, or employees. In the event the City Manager determines that PSP's use of the Stadium or other facilities as authorized under this Agreement creates an increased or decreased risk of loss to the City, PSP agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. PSP shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. All insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: 6.1.1 Commercial General Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. 6.1.2 Workers' Compensation Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. PSP agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. If PSP has no employees, PSP shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. 6.1.3 Business Automobile Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non - owned, leased, and hired cars. 6.1.4 Employer Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 6.2 Deductibles and Self -insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. PSP guarantees payment of all deductibles and self -insured retentions. City reserves the right to reject deductibles or self -insured retentions in excess of $10,000, and the City Manager or his/her designee may Page 14 of 23 require evidence of pending claims and claims history as well as evidence of PSP's ability to pay claims for all deductible amounts and self -insured retentions proposed in excess of $10,000. 6.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of PSP under this Agreement: 6.3.1 For any claims related to this Agreement, PSP's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of PSP's insurance and shall not contribute with it. 6.3.2 Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. 6.3.3 All insurance coverage and limits provided by PSP and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 6.3.4 No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. 6.3.5 PSP agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements will be rejected. It is PSP's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 6.3.6 PSP agrees to ensure that subcontractors, and any other parties involved with the use of the Stadium who are brought onto or involved by PSP, provide the same minimum insurance coverage required of PSP. PSP agrees to monitor and review all such coverage and assumes all Page 15 of 23 responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. PSP agrees that upon request, all agreements with subcontractors and others engaged by PSP will be submitted to the City for review. 6.3.7 PSP acknowledges and agrees that any actual or alleged failure on the part of the City to inform PSP of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 6.3.8 PSP shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. 6.3.9 Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 6.3.10 The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. 6.3.11 PSP agrees to provide immediate notice to City of any claim or loss against PSP arising out of the use of the Stadium as authorized by this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 6.3.12 PSP agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the PSP may be held responsible for the payment of damages resulting from the PSP's activities or the activities of any person or person for which PSP is otherwise responsible. 6.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Page 16 of 23 Manager or his designee due to unique circumstances. 6.5 Verification of Coverage. PSP shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before use of the Stadium commences. City reserves the right to require PSP's insurers to provide complete, certified copies of all required insurance policies at anytime. Additional insured endorsements are not required for the Workers' Compensation policy. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured..." ("as respects City of Palm Springs Contract No. "or "for any and all work performed with the City" may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No. " or "for any and all work performed with the City" may be included in this statement). 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of use of the Stadium shall not waive PSP's obligation to provide them. 6.6 Indemnification and Reimbursement. To the fullest extent permitted by law, PSP shall defend (at PSP's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, Page 17 of 23 demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (PSP's employees included), for damage to property, including property owned by City, and from any violation of any federal, state, or local law or ordinance that arise out of or relate to PSP's use of the Stadium and related facilities as authorized under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit PSP's indemnification obligation or other liability under this Agreement. PSP's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 7. RECORDS AND REPORTS 7.1 Accountina Records. PSP shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. PSP shall keep such books and records as may be necessary or required by this Agreement. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. PSP shall periodically prepare and submit to the Contract Officer such reports as may be required by this Agreement, or as the Contract Officer shall require. 7.3 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, PSP shall provide City, or other agents of City, such access to PSP's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to PSP's compliance with the terms of this Agreement. PSP shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and PSP covenants and agrees to submit to the personal jurisdiction of such court in the event of Page 18 of 23 such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of PSP. PSP's failure to comply with any provision of this Agreement shall constitute a default. If the City Manager, or his designee, determines that PSP is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify PSP in writing of such default. PSP shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event PSP fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. PSP shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 10.9. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. 8.5 Ri hts and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Page 19 of 23 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non -judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non - prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert PSP fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non -judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to PSP, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. PSP acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall PSP enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. PSP warrants that PSP has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, PSP shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). PSP shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. PSP's actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any PSP activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; provision of benefits, rates of pay or other forms of compensation; and selection for training, including apprenticeship. PSP shall fully comply with the provisions of Palm Springs Municipal Code Section 7.09.040 relating to non-discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre -paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent Page 20 of 23 by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 To PSP: Palm Springs Power Baseball 1901 E. Baristo Rd. Palm Springs, CA 92262 Attention: Andrew Starke Telephone: (760) 778-4487 Facsimile: (760) 325-7206 10.2 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 10.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. Page 21 of 23 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 10.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. 10.9 Termination. The Contract Officer may terminate this Agreement for the convenience of the City at any time, with or without cause, in whole or in part, upon giving PSP six (6) month's written notice. (SIGNATURES CONTINUED TO NEXT PAGE) Page 22 of 23 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: David H. Ready, Ph City Manager APPROVED AS TO FORM: ATTEST By:By: Edward Z. Kotkin City Attorney APPROVED BY CITY COUNCIL: Date: (P � greem�ent No.P62P Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. PALM SPRINGS POWER BASEBALL CLUB, INC. A CALIFORNIA CORPORATION TBy By igna u (Notan ) Signature (Notarized) Page 23 of 23 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document: State of Califo County of l V%✓� I a�. On JVvie, c;i`4� )V before me, ! ka' A -Ivav4 NcrLoJ L , (here insert name and tltl of the officer) personally appeared is ho proved to me on the basis of satisfactory evidence to be the person(,) whose name are subscribed to the within instrument and acknowledged to me that h sheAey executed the same in is k-r/tWr authorized capacity(i4s), and that by i ftr/Lheir signature(g) on the instrument the person(, or the entity upon behalf of which the person(j} acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ` (Seal) _ CYNTHIAA BERARDI Pu* - Calftnia RMuside County S Commiaaion R 2229138 My Comm. Expires Feb 18, 2022 w J G W U) li Z W J Q v Q m W o Vo en K � �y m r1 n OpwO Z d a ��p YN� m .Yi N N N 46 0 P, N ti ` cc M 00 N N N N T C Z co r N 1r 1 T +�-1 N a �- U N LL`"4i�N9, 44N o c 23� �'"�p�p1N�Nm d Y E3 py N^ N N Ny 3 .yV r~I ri N M Shm 3 O 0 N � p �D rl N N p�„ e��l N 1�11 y 7 G �o Ln N OI &D rl N c N -M ip eMf O r1 fNV p� m 0N a 2 �i a y N prpl a T"44 rl N 12 pM�I rl oo C N N 1"O N 1Nn m ~ uN1 �Ny OMa LL M b N N�3- N y N p Np y N� w N N Ln N 0 co a� rl N Li C E 12 y co a W M N N N r^I N 1 C 7 C ltl pa C O l0 C C q� N �p :o pip � er�i N N M y w�l �w�pl N N C LL N rl rl N N W a .4 ri N -1 7 rl -03 y el r^i N 1~!1 A y N OI w N y m 7 N a N N rfl pw a e� IQ N? epA EE O N m N N N fYf ^ N N gol4 v �{ p�pp M E e�pp �3�j T E v cmm^ a N N N b rl 4A s ui AGREEMENT TO USE FACILITIES This Agreement to Use Facilities ("Agreement") is made and entered Into thisjay of _, 2018, by and between the CITY OF PALM SPRINGS ("City"), a California c r er city and municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. It is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium and related facilities, (hereinafter the "Stadium"), the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide an instructional league for Minor and Independent League professional players and competitive collegiate - level baseball entertainment for residents and visiting youth and adults at the Stadium. 1A.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 113. GRANT OF NON-EXCLUSIVE USE 1 B.1 The City grants PSP the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 113.2 PSP shall have the exclusive use of the offices, locker rooms and concession located at the Stadium subject to the terms and conditions more particularly set form below. 1 B.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all baseball games held for or on behalf of PSP during the term of this Agreement. ORIGINAL BID Page 1 of 23 AND/OR AGREEMENT 1 BA PSP shall have the exclusive use of the entire Stadium for the following specific periods of time: a) approximately twenty-five (25) dates of the instructional league, for the California Winter League, extending from January 22, 2018, through February 18, 2018; and b) approximately fifty-four (54) dates of the Palm Springs Youth Academy practices, on Mondays and Thursdays, extending from January 22, 2018, through July 31, 2018; and c) approximately forty-five (45) home games of the collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), during the baseball season for the Southern California Collegiate League, extending from May 29, 2018, through July 31, 2018; d) a maximum of three tournaments hosted by the Team. Exclusive use of the Stadium for these purposes shall commence at 6:00 a.m. on the date of such home game or tournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team, at which time an updated Exhibit "A", Calendar Schedule, will be prepared by the City and provided back to PSP. PSP may request additional use of the Stadium for events other than baseball; however, City does not guarantee availability of the Stadium for any additional use not already authorized under this Agreement, per attached Exhibit "A", Calendar Schedule... The City reserves for itself the exclusive use of the Stadium for the following periods of time: 1) Martin Luther King Weekend (Saturday — Monday) for use by the Men's Senior Baseball League; 2) Library — Family Fun Fest (Wednesday, March 28, 2018); 3) Memorial Weekend (Saturday — Monday) for use by the San Diego Youth Baseball League; and 4) Fourth of July Fireworks Event (partnered with PSP, with PSP holding its All American July 4th Game prior to the Fireworks Event) PSP may have non-exclusive use of the Stadium at all other periods of time, subject to advance notice to the City. City reserves the right to designate use of the Stadium during periods of non-exclusive use upon notice to PSP, and provided PSP has not Page 2 of 23 C previously notified City of its intended use at the same period of time. 1 B.5 For the period commencing with the first home game of the Team and ending with the last home game of the Team, or the last tournament to be hosted by the Team, whichever is later, PSP shall have the exclusive right to use the locker rooms located at the Stadium. 18.6 During the term of this Agreement, PSP shall remain a member in good standing of the Southern California Collegiate League and the California Winter League, or such other leagues as approved by the City. 1 B.7 Within five (5) days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the offices and interior storage rooms, unless PSP has previously notified City of its intended non-exclusive use of the Stadium commencing upon the end of Season or of any tournament, to which City has approved such use. PSP's schedule shall take precedence in all scheduling of the Stadium. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 1 B.8 Unless PSP has obtained City's prior approval for continued non-exclusive use of the Stadium for the period extending from the end of California Winter League Season and the start of the Southern California Collegiate League, City shall relinquish the Stadium to PSP one week prior to opening Day for the summer season. However, the field can still be rented out by the City for other baseball events if PSP is not using the field. PSP shall relinquish the Stadium to the City on July 31, 2018. 2. AREAS OF RESPONSIBILITY 2.1 Use 2.1.1 City and PSP shall conduct a walk-thru of the Stadium to verify the condition prior to PSP taking possession. Upon PSP relinquishing Stadium to City, any damage or cleaning requirements, as determined at the sole discretion of City, shall be satisfied by PSP. 2.1.2 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, and the sale of concessions during home games, and the promotion Page 3 of 23 G of City -approved events in addition to baseball. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights prior to and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. The City shall stock and clean all exterior restroom prior to each game day, and PSP shall pay City $50 per game day for this service. PSP shall be responsible for any necessary restocking or cleaning of restrooms during an event. At the end of each day on which a game is played, PSP shall be responsible for ensuring that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.3 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for which the Stadium is hereby rented to PSP. In addition, this Agreement does allow PSP to use the Cerritos Field for baseball activities when requested and granted by the City. PSP shall not sell or permit to be kept, used, displayed, or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies or (b) any alcoholic beverages unless expressly approved in advance by the Contract Officer. 2.1.4 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concession stand equipment. 2.1.5 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff, members and guests use the Stadium. 2.1.6 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP. The term "environmental law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term "hazardous material" includes, without limitation, any material or substance that is (i) defined or listed as a "hazardous waste", "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contract Officer of the existence of hazardous Page 4 of 23 C. G substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment, and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets. The City reserves the right to retain concessions for City -sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and tournament games and for the sale of concessions shall be uniform, except that PSP shall provide discounted admission prices for children undertwelve (12), students and adults over sixty-five (65) years of age, and subject to the prior approval of the Contract Officer, which approval shall not be unreasonably withheld. The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall be removed upon termination of the Agreement. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or Page 5 of 23 rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at wwwr)almspringsca.gov. The parties agree that said link may be framed whereby material or pages from the linked website appear in a frame on the site which creates the link. The parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy or completeness of materials contained on their respective websites and agree to hold each other harmless from any special, indirect, incidental or consequential damages that may arise from the use of or the inability to use the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or PSP. 2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full -page four-color advertisement on the inside of the PSP's official program for marketing and promotion purposes. 2.4 Repairs and Maintenance 2.4.1 PSP shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium and the adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium, PSP shall be deemed to have accepted the Stadium as being in a good, neat, clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 2.4.2 The City hereby agrees to mow, water, seed and otherwise maintain the playing field of the Stadium in a condition satisfactory to conduct independent league baseball games, provided that PSP shall be responsible for preparation of the infield for all home games and tournament games. The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis, to be operable at the time of all home games and tournament games. The City shall also maintain all electrical repairs, structural repairs, and overall maintenance of the Stadium. The City shall be responsible for Page 6 of 23 cleaning the Stadium to a good, neat, clean and orderly condition after third - party events and prior to the start of each baseball season no later than three (3) days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contract Officer. PSP shall not contact the landscape maintenance contractor directly. 2.5 Utilities 2.5.1 The City shall provide and maintain water for the Stadium at the City's sole expense. 2.5.2 PSP will be responsible for 100% of all electrical costs incurred for the Stadium offices, locker rooms, outfield lights, and concessions, utilizing the existing meters at the Stadium to track PSP's electrical usage for the air conditioning (A/C), the interior lights and outlets for the Stadium, the outfield lights, and the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. 2.5.3 PSP will be responsible for the gas costs for the Stadium, which is also metered. 2.5.4 PSP hereby waives, discharges, and holds harmless the City, its elected and appointed offices, employees and agents, for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency or impairment in the provision of utilities to the Stadium. 2.5.4 Payment for electrical and gas costs shall be made directly to the City and will be due within ten (10) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.5.6 If a PSP game must be cancelled due to a Stadium malfunction, such as the lights not working or the sprinklers not turning off, and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, PSP will receive a one thousand dollar ($1,000) electrical credit from the City. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the Contract Officer, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier Page 7 of 23 termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contract Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by PSP. 2.7 Damage and Destruction In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadium or (b) the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair the Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.8 Compliance with Law PSP shall use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.9 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 2.10 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. Page 8 of 23 2.11 Prohibited Activities. 2.11.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer, 2.11.2 Vending machines are prohibited. 2.11.3 The sale of tobacco and gum is prohibited. 2.11.4 The sale of any item which is contained in a glass container is prohibited. 2.11.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.12 Security and Access Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 3. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental 3.1.1 RENT: PSP agrees to pay to the City as rental for said premises the sum of One Thousand Dollars ($1,000) per month for use of the Stadium and/or Cerritos Field. PSP shall promptly pay to the City the total rent for the current month, with the rental fee commencing upon PSP's use of the Stadium on January 22, 2018. The rental fee shall be paid within five (5) days to the City for each month of Stadium and/or Cerritos Field use as authorized by this Agreement for the period of January 22, 2018, through July 31, 2018. A total of 6 monthly payments in the amount of $1,000 shall be due and payable, with the final monthly payment prorated 25% of the rental fee for the term of July 22 through July 31, 2018, in the amount of $250. The total rental fee payable for the limited term of this Agreement is $6,250. 3.1.2 UTILITIES: PSP agrees to pay to the City 100% of all electrical and gas costs for the Stadium at current utility rates, in accordance with Section 2.5 of this Agreement. City will prepare an invoice for billing to PSP. Upon receipt of such billing, PSP shall promptly pay to the City the total utility costs for the preceding month, and not later than thirty (30) days after receipt thereof. Page 9 of 23 3.2 Security Deposit PSP has provided City with a security deposit in the sum of One Thousand Dollars ($1,000). City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City underthis Agreement, shall be made after sixty (60) days have elapsed following the effective date of said termination. 3.3 Concession Fee The rental fee paid by PSP pursuant to Section 3.1 herein shall be in lieu of a Concession Fee or other payment made to City for improvements to the Stadium. However, PSP acknowledges and agrees that in the absence of a concession fee or other payment from PSP sufficient for major capital improvements or repairs to the Stadium, City will not be required to replace the electronic scoreboard; however, minor repairs required for the electronic scoreboard, if such repairs can be performed by City staff, will be provided as may be reasonably necessary. 3.4 Real and Personal Property Taxes In addition to all other payments herein reserved, PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment and all other personal property of PSP located in the Stadium. 3.5 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by PSP not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of Page 10 of 23 such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.6 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non -usurious rate permitted by law, in which case interest shall be the maximum non -usurious rate allowed by law at the time the sum became due. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement, the term of this Agreement shall commence on January 22, 2018, and terminating on July 31, 2018. At the sole discretion of the City Manager, this Agreement may be extended on a month -to -month basis subject to all of the terms and conditions contained herein. 5. COORDINATION OF WORK 5.1 Representative of PSP. The following principals of PSP are hereby designated as being the principals and representatives of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). PSP shall be responsible for keeping the Contract Officer fully informed of PSP's use of the Stadium and related facilities as authorized by this Agreement. PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. Page 11 of 23 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, capability, expertise, and reputation of PSP, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, PSP shall not assign full or partial rights or obligations under this Agreement, nor any monies due, voluntarily or by operation of law, without the prior written consent of City. PSP shall not contract with any other entity to perform any work as may be required under this Agreement without the prior written consent of City. If PSP is permitted to subcontract any work as authorized by this Agreement by City, PSP shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the use of the Stadium and related facilities will be considered employees of PSP. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whetherforthe benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of PSP, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release PSP or any surety of PSP from any liability under this Agreement without the express written consent of City. With respect to the foregoing, PSP may subcontract or assign the concession sales to a licensed vendor upon prior written approval by the Contract Officer. 5.4 Independent Contractor The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make PSP a City employee. A. During the use of the Stadium and related facilities as authorized by this Agreement, PSP and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing any work or services as authorized under this Agreement on behalf of PSP shall at all times be under PSP's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of PSP or any of its officers, employees, or agents, except as set forth in this Agreement. City shall have no voice in the selection, discharge, supervision, or control of PSP's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. PSP shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers' compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of PSP in its business or otherwise a joint Page 12 of 23 venturer or a member of any joint enterprise with PSP. B. PSP shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City. C. No City benefits shall be available to PSP, its officers, employees, or agents in connection with any performance under this Agreement. Except for payments otherwise due to PSP as might be provided for in this Agreement, City shall not pay salaries, wages, or other compensation to PSP for the performance of any work or services as authorized by this Agreement. City shall not be liable for compensation or indemnification to PSP, its officers, employees, or agents, for injury or sickness arising out of performing any work or services in the use of the Stadium and related facilities. If for any reason any court or governmental agency determines that the City has financial obligations in this Agreement of any nature relating to salary, taxes, or benefits of PSP's officers, employees, servants, representatives, subcontractors, or agents, PSP shall indemnify City for all such financial obligations. fi. INSURANCE. INDEMNIFICATION AND BONDS 6.1 Types of insurance. PSP shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from PSP's use of the Stadium and other facilities as authorized under this Agreement, including PSP's agents, representatives, or employees. In the event the City Manager determines that PSP's use of the Stadium or other facilities as authorized under this Agreement creates an increased or decreased risk of loss to the City, PSP agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. PSP shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. All insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: 6.1.1 Commercial General Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. 6.1.2 Workers' Compensation Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of Page 13 of 23 California. PSP agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. If PSP has no employees, PSP shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. 6.1.3 Business Automobile Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non - owned, leased, and hired cars. 6.1.4 Employer Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 6.2 Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. PSP guarantees payment of all deductibles and self -insured retentions. City reserves the right to reject deductibles or self -insured retentions in excess of $10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of PSP's ability to pay claims for all deductible amounts and self -insured retentions proposed in excess of $10,000. 6.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of PSP under this Agreement: 6.3.1 For any claims related to this Agreement, PSP's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of PSP's insurance and shall not contribute with it. 6.3.2 Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. 6.3.3 All insurance coverage and limits provided by PSP and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is Page 14 of 23 brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 6.3.4 No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. 6.3.5 PSP agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements will be rejected. It is PSP's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 6.3.6 PSP agrees to ensure that subcontractors, and any other parties involved with the use of the Stadium who are brought onto or involved by PSP, provide the same minimum insurance coverage required of PSP. PSP 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. PSP agrees that upon request, all agreements with subcontractors and others engaged by PSP will be submitted to the City for review. 6.3.7 PSP acknowledges and agrees that any actual or alleged failure on the part of the City to inform PSP of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 6.3.8 PSP shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. 6.3.9 Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes Page 15 of 23 of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 6.3.10 The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. 6.3.11 PSP agrees to provide immediate notice to City of any claim or loss against PSP arising out of the use of the Stadium as authorized by this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 6.3.12 PSP agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the PSP may be held responsible for the payment of damages resulting from the PSP's activities or the activities of any person or person for which PSP is otherwise responsible. 6.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. 6.5 Verification of Coverace. PSP shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before use of the Stadium commences. City reserves the right to require PSP's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for the Workers' Compensation policy. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured..." (pas respects City of Palm Springs Contract No. " or "for any and all work performed with the City" may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No. " or "for Page 16 of 23 any and all work performed with the City!' may be included in this statement) 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of use of the Stadium shall not waive PSP's obligation to provide them. 6.6 Indemnification and Reimbursement. To the fullest extent permitted by law, PSP shall defend (at PSP's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (PSP's employees included), for damage to property, including property owned by City, and from any violation of any federal, state, or local law or ordinance that arise out of or relate to PSP's use of the Stadium and related facilities as authorized under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit PSP's indemnification obligation or other liability under this Agreement. PSP's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 7. RECORDS AND REPORTS 7.1 Accounting Records. PSP shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. PSP shall keep such books and records as may be necessary or required by this Agreement. The Contract Officer shall have full and free access to such books and Page 17 of 23 records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. PSP shall periodically prepare and submit to the Contract Officer such reports as may be required by this Agreement, or as the Contract Officer shall require. 7.3 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, PSP shall provide City, or other agents of City, such access to PSP's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to PSP's compliance with the terms of this Agreement. PSP shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of PSP. PSP's failure to comply with any provision of this Agreement shall constitute a default. If the City Manager, or his designee, determines that PSP is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify PSP in writing of such default. PSP shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event PSP fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. PSP shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not Page 18 of 23 constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 10.9. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, orterms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. 8.5 Ri hts and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.6 Lenal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non - prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to PSP, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. PSP acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall PSP enter into any agreement of any kind with any such officer or employee during the term of this Page 19 of 23 Agreement and for one year thereafter. PSP warrants that PSP has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, PSP shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). PSP shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. PSP's actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any PSP activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; provision of benefits, rates of pay or other forms of compensation; and selection for training, including apprenticeship. PSP shall fully comply with the provisions of Palm Springs Municipal Code Section 7,09.040 relating to non-discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre -paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 Page 20 of 23 To PSP: Palm Springs Power Baseball 1832 North Mira Loma Way Palm Springs, CA 92262 Attention: Andrew Starke Telephone: (760) 778-4487 Facsimile: (760) 325-7206 10.2 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 10.4 Severabliity. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 10.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. Page 21 of 23 M 10.9 Termination. The Contract Officer may terminate this Agreement for the convenience of the City at any time, with or without cause, in whole or in part, upon giving PSP written notice at any time after the last home game of each Season and at least sixty (60) days prior to the first home game of each subsequent Season. Such termination shall become effective on the 30th day after the date of the notice of termination. (SIGNATURES CONTINUED TO NEXT PAGE) Page 22 of 23 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. Date-_ "-_-- _ j•�,,. APPROVED AS TO FORM: "CITY" City of Palm Springs By. David H. Ready, PhD City Manager ATTEST B Edward Z. Kotkin on"ejia, City Attorney City Cle APPROVED BY CITY COUNCIL: � �. Date: �� Agreement No. A 5xa Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer. Assistant Treasurer, or Chief Financial Officer. PALM SPRINGS POWER BASEBALL CLUB Check one . Individual Partnership X Corporation 10 _'�t r By By Signature (Notarized) Signature (Notarized) Page 23 of 23 W J W T. w 0 Z W J a V a m W L 13 c 4) a 00 N ~ ^ 3 N N N N L b in c "I N N LL M rNi �a-1 N M 'C • a r�l N 06 N N Q H G N a H rM ~ a N N N N y� of 0 N n T4 y� ^ 3 N N� ,i m L 74 N a on aN m~ NN YD N N N inN~ ^ 'O N N ' ..-i1 Ir1 5 r^M N N y eat N mN pM N 0M N ql 2 N a V4 ri N 020 in w a N N N rl O N Q N ~ S A Z � p a A O A O V m w CL 1p Y E V c LL q V U. S ' p T v • a r i iy �L J yi H 75 � co d ri J rl a G m i yZ m N r^I N M ~ a te wk N a N N N N N N N N r1 06 1� 1� ri m ^ 4N4 ►x toM a N N N � N a .i W' N W }N C a N r� .art C44 • rry e� N N w io y N M N N In N a N •^M CIE c C C N m �AA 7 a N r ID N � in� M V pco NN p0� LL N rl rl N N �eappi a ri N N u V C m .N.1 N N aa M V4 N M m Q E G 7 �p N N •1 V Ir • 2 N N ffl s3 • N 4!1 V d .� �L Vm> r+ O N ao r N1 �3 .4 e0 H c N E' c �/{ rM� • a N N 0 M^ ti 'C 4o Ny. a a ii VI L N V �u G N N .20 N N N N N tEpp 6 V R• C% � co FACILITY USE AGREEMENT EXTENSION CITY OF PALM SPRINGS PALM SPRINGS POWER BASEBALL CLUB This extension of the Agreement to Use Facilities is made and entered into this 1st day of December, 2015 by and between the CITY OF PALM SPRINGS ("City"), a municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB ("PSP"), a California Corporation. RECITALS a. The City and PSP entered into an Agreement to Use Facilities on the 25t'' day of April, 2011, for the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California. b. The City Council authorized the City Manager to extend the Agreement, at the discretion of the City Manager, and upon mutual agreement of the City and PSP, for two additional two-year terms. C. The Agreement terminated on November 30, 2013, and by mutual agreement the City and PSP extended the term to November 30, 2015. d. The City and PSP wish to further extend the term of the Agreement to November 30, 2017, pursuant to Section 4.2 of the Agreement, and clarify certain terms of the Agreement. NOW, THEREFORE, THE CITY AND PSP DO HERBY MUTUALLY AGREE AS FOLLOWS: SECTION 1. TERM. Unless earlier terminated in accordance with Section 8.6 of the Agreement, this extension shall commence on December 1, 2015, and terminate on November 30, 2017. SECTION 2. CONCESSION FEE. PSP will pay City a concession fee in accordance with the following schedule: February 1, 2016 $1,000 February 1, 2017 $1,000 For the purpose of this extension the concession fee will be spent by the City on improvements to the concession stand at the Stadium and improvements to any area, or any equipment that supports and services such area, that PSP has the exclusive use pursuant to Section 1 B.2 of the Agreement. SECTION 3. RESTROOM FACILITIES AND PAYMENTS. Notwithstanding Section 2.1.2 of the Agreement, PSP shall stock and clean all exterior restrooms, and the payment required of $50.00 to the City is deleted. SECTION 4. PARKING. Notwithstanding Section 2.1.2 of the Agreement, PSP shall be responsible for procuring parking attendants, to ensure users and guests do not park in the Palm Springs Library Parking Lot, during Library hours, with the exception of such users and guests that have a valid handicapped placard. Except as extended and otherwise clarified, all other terms of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the Parties have executed this Extension as of the dates stated below. Date:r APPROVED AS TO FORM: In Douglas C. Holland, City Attorney "CITY" City of Palm Springs By: avid H. Read City Manage ATTEST jr B. James Thompson City Clerk "PSP" Palm Springs Power Baseball Club Date: 1 By: &=:jLk Andrew Starke Chief Executive Officer CALIFORNIA 1 WINTER LEAGUE Good Afternoon David, Per the recommendation of Doug Holiand, I am emailing you to request extending the City's agreement with the Palm Springs POWER Baseball Club Inc. as provided in section 4.2 for a 2 year extension. Additionally, I am willing to pay the $1,000 per year concession fee for the next two years as well. Please let me know if this is acceptable. Thank you very much, a�', 445� Andrew Starke President Palm Springs POWER California Winter League Office: 760 778-4487 Fax: 760 325-7206 www.PaImSprinjzsPOWERBaseball.com www.CalifomiaWinterLeague.com A O As TO l`ORiW Day Attern9V opir It. r3• 13 Palm Springs POWER Baseball 1901 East Baristo Rd. Palm Springs, CA 92262 Ph (760) 778-HITS (4487) • Fax (760) 325-7206 www.Pa[mSprinpsPowerBascball.com www.CaliforniaWinterLeaeue.com G'I ORIGINAL SIU AMOR AGREEMENT AGREEMENT TO USE FACILITIES This Agreement to Use Facilities ("Agreement") is made and entered into this day of 2011, by and between the CITY OF PALM SPRINGS ("City"), a municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. It is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium ("Stadium"), the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1 A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide an instructional league for Minor and Independent League professional players and competitive collegiate -level baseball entertainment for residents and visiting youth and adults at the Stadium. IA.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1 A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 1B. GRANT OF NON-EXCLUSIVE USE 113.1 The City grants PSP the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 113.2 PSP shall have the exclusive use of the offices, locker rooms and concession located at the Stadium subject to the terms and conditions more particularly set forth below. 113.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all baseball games held for or on behalf of PSP during the term of this agreement. 113.4 Subject only to the City's Fourth of July Fireworks event, PSP shall have the exclusive use of the entire Stadium for the following: (a) approximately forty-five (45) home dates of the collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), during the baseball season for the Pacific Southwest League ("Season"); (b) approximately twenty-five (25) dates of the instructional league, for the California Winter League; and (c) a maximum of three (3) tournaments hosted by the Team. Exclusive use of the Stadium for these purposes shall commence at 6:00 a.m. on the date of such home game or tournament and end three (3) hours after the completion of each home game or, for a tournament, the last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team, but not later than November 30 of each year the Agreement is in effect. PSP may request additional use of the Stadium for events other than baseball; however, City does not guarantee availability of the Stadium for any additional use not already authorized under this Agreement. For any requests for additional use that are granted by City, PSP shall pay all fees in accordance with the C't 's comprehensive fee schedule in effect at the time the request is made. ()901yAL B�R gAEW A10R AG 735380.2 I B.5 For the period commencing with the first home game of the Team and ending with the last home game of the Team or the last tournament to be hosted by the Team, whichever is later, PSP shall have the exclusive right to use the locker rooms located at the Stadium. 113.6 During the term of this Agreement, PSP shall remain a member in good standing of the Southern California Collegiate League and the California Winter League, or such other leagues as approved by the City. 1 B.7 Within five (5) days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the offices and interior storage rooms. PSP's schedule shall take precedence in all scheduling of the Stadium, with the exception of the Black History Festival the last Saturday in February. For Winter and Summer League, however, dates for tournaments must be requested on a City Facility Use Application. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 1 B.8 City shall relinquish the Stadium to PSP one week prior to opening Day for the summer season. However, the field can still be rented out by the City for other baseball events if PSP is not using the field. PSP shall relinquish the Stadium back to the City on August 15. For the Winter season, the City shall relinquish the Stadium to PSP on January 20 and PSP shall relinquish the Stadium back to the City on March 1. City shall relinquish the Stadium to PSP on an as -scheduled basis for tournaments and special events approved by the City and PSP shall relinquish the Stadium back to the City within 48 hours of conclusion of any tournament or special event. 2. AREAS OF RESPONSiBILffY 2.1 Use. 2.1.1 City and PSP shall conduct a walk-thru of the Stadium to verify the condition prior to PSP taking possession. Upon PSP relinquishing Stadium to City, any damage or cleaning requirements, as determined at the sole discretion of City, shall be satisfied by PSP. 2.1.2 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, the sale of concessions during home games, and the promotion of City -approved events in addition to baseball. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights prior to and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. The City shall stock and clean all exterior restrooms prior to each game day, and PSP shall pay City $50 per game day for this service. PS shall be responsible for any necessary restocking or cleaning of restrooms during an event. At the end of each day on which a game is played, PSP shall be responsible for ensuring that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.3 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for which the Stadium is hereby rented to PSP. In addition, this Agreement does allow PSP to use the Cerritos Field outfield grass when requested and granted by the City for stretching and warming up during tournaments and the CWL season. PSP shall not sell or permit to be kept, used, displayed or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies or (b) any alcoholic beverages unless expressly approved in advance by the Contract Officer. 735380.2 2.1.4 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concession stand equipment. 2.1.5 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff, members and guests use the Stadium. 2.1.6 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP. The term environmental law shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term hazardous material includes, without limitation, any material or substance that is (i) defined or listed as a hazardous waste, hazardous substance or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the City of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink and goods as are normally served by concessionaires in baseball stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets. The City reserves the night to retain concessions for City -sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and tournament games and for the sale of concessions shall be uniform per event, except that PSP shall provide discounted admission prices for children under twelve (12), students and adults over sixty-five (65) years of age, and subject to the prior approval of the Contract Officer, which approval shall not be unreasonably withheld. The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be received by PSP. Outfield advertising shall remain in place from March 1 through December 31 of each year the agreement is in effect. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer, which approval shall not be 735380.2 unreasonably withheld. The City reserves the right to temporarily cover or take down advertising signs during special events and/or rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at www.palmspringsca.gov. The parties agree that said link may be "framed" whereby material or pages from the linked website appear in a frame on the site which creates the link. The parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy or completeness of materials contained on their respective websites and agree to hold each other harmless from any special, indirect, incidental or consequential damages that may arise from the use of or the inability to use the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or PSP. 2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full -page four-color advertisement on the inside of the PSP's official program for marketing and promotion purposes. 2A Repairs and Maintenance 2.4.1 PSP shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium, to include offices, locker rooms and concessions, and the adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium, PSP shall be deemed to have accepted the Stadium as being in a good, neat, clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 2.4.2 The City hereby agrees to mow, water, seed and otherwise maintain the playing field of the Stadium in a condition satisfactory to conduct independent league baseball games, provided that PSP be responsible for preparation of the infield for all home games and tournament games. The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis, to be operable at the time of all home games and tournament games. The City shall also maintain all electrical repairs, structural repairs, and overall maintenance of the Stadium. The City shall be responsible for cleaning the Stadium to a good, neat, clean and orderly condition after third -party events and prior to the start of each baseball season no later than three (3) days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contract Officer. PSP shall not contact the landscape maintenance contractor directly. 2.5 Utilities 2.5.1 The City shall provide and maintain water for the Stadium at the City's sole expense. 2.5.2 PSP will be responsible for all electrical costs incurred for the Stadium offices, locker rooms and concessions. The City will install four (4) meters at the Stadium to track PSP's electrical usage. One (1) meter will be for the air conditioning (A/C); one meter for the interior lights and outlets for the Stadium; one for the outfield lights; and the fourth meter for the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. 735380.2 2.5.3 PSP will be responsible for the gas costs for the Stadium, which is also metered. 2.5.4 PSP hereby waives, discharges, and holds harmless the City, its elected and appointed officers, employees and agents, for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency or impairment in the provision of utilities to the Stadium. 2.5.5 Payment for electrical and gas costs shall be made directly to the City and will be due within ten (10) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.5.6 If a PSP game must be cancelled due to a Stadium malfunction, such as the lights not working or the sprinklers not turning off, and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, PSP will receive a one thousand dollar ($1,000) electrical credit from the City. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the City, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The City may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by PSP. 2.7 Damage and Destruction In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadium or (b) the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair the Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.8 Compliance with Law PSP shall use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.9 Licenses, Permits, Fees and Assessments PSP shall obtain, at its sole cost and expense, such licenses, permits and approvals as may be required by law for the use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 735380.2 2.10 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 2.11 Prohibited Activities 2.11.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.11.2 Vending machines are prohibited. 2.11.3 The sale of tobacco, gum and all other items that create safety or litter problems, as determined by the Contract Officer, is prohibited. 2.11 A The sale of any item which is contained in glass or a metal container is prohibited. 2.11.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.12 Security and Access Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 3. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental 3.1.1 RENT: PSP agrees to pay to the City as rental for said premises the sum of One Dollar ($1.00) per year, first payment payable on the date of execution of this lease agreement, and thereafter on the 15'h day of January of each succeeding year. 3.1.2 UTILITIES: PSP will be responsible for the electrical and gas costs for the Stadium in accordance with Section 2.5 of this Agreement. 3.2 Security Deposit PSP has provided City with a security deposit in the sum of One Thousand Dollars ($1,000) City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent or utilities due pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement or by law or in equity. 735380.2 The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City under this Agreement, shall be made after sixty (60) days have elapsed following the effective date of said termination. 3.3 Concession Fee PSP will pay City a concession fee in accordance with the following schedule: February 1, 2011 - $500.00 February 1, 2012 - $750,00 February 1, 2013 - $1,000,00 The concession fee will be spent by City on improvements to the concession stand at the Stadium. Improvements will be mutually agreed upon by City and PSP in advance of any expenditures. 3.4 Real and Personal Property Taxes In addition to all other payments herein reserved, PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment and all other personal property of PSP located in the Stadium. 3.5 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by PSP not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.6 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non -usurious rate permitted by law, in which case interest shall be the maximum non -usurious rate allowed by law at the time the sum became due. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement, this Agreement shall commence on December 1, 2010 and terminate on November 30, 2013. At the discretion of the City Manager, this Agreement may be extended for two (2) two-year terms upon the expiration of the original term. 735380.2 5. COORDINATION OF WORK 5.1 Representative of PSP The following principal of PSP is hereby designated as being the principal and representative of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke 2140 E. Rochelle Palm Springs, CA 92262 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal was a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principal may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City Manager or the City Manager's designee, which may include the City's Department of Parks and Recreation Director or the designee or designees of the Director. It shall be the PSP's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, capability and reputation of PSP, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, sublet, hypothecated or otherwise transferred voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of Contract Officer. However, PSP may subcontract or assign the concession sales to a licensed vendor upon prior written approval by the Contractor Officer. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent (50%) of the present ownership and/or control of PSP, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release PSP of any liability hereunder without the express consent of Contract Officer. 5.4 Independent Contractor Neither City nor any of its employees shall have any control over the manner, mode or means by which PSP, its agents or employees perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of PSP's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. PSP shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. PSP shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of PSP in its business or otherwise or a joint venturer or a member of any joint enterprise with PSP. 735380.2 6. INSURANCE. INDEMNIFICATION AND BONDS 6.1 Insurance PSP shall procure and maintain, at its sole costs and expense, in a form and content satisfactory to Contract Officer, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: a. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per -occurrence basis in an amount not less than either (i) a combined single limit of One Million Dollars ($1,000,000) for bodily injury, death and property damage or (ii) bodily injury limits of Five Hundred Thousand Dollars ($500,000) per person, One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) products and completed operations and property damage limits of Five Hundred Thousand Dollars ($500,000) per occurrence and Five Hundred Thousand Dollars ($500,000) in the aggregate. b. Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both PSP and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by PSP in the course of carrying out the work or services contemplated in this Agreement. C. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per -occurrence basis in an amount not less than either (i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars ($250,000) per person and Five Hundred Thousand Dollars ($500,000) per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000) per occurrence and Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate or (ii) combined single limit liability of Five Hundred Thousand Dollars ($500,000). Said policy shall include coverage for owned, non -owned, leased and hired cars. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days' prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, PSP shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 6.1 to the Contract Officer. No work or services under this Agreement shall commence until PSP has provided City with certificates of insurance or appropriate insurance binders evidencing the above insurance coverage and said certificates of insurance or binders are approved by City. PSP agrees that the provisions of this Section 6.1 shall not be construed as limiting in anyway the extent to which PSP may be held responsible for the payment of damages to any persons or property resulting from PSP's activities or the activities of any person or persons for which PSP is otherwise responsible. In the event PSP subcontracts any portion of the work in compliance with Section 5.3 of this Agreement, the contract between PSP and such subcontractor shall require the subcontractor to maintain the same policies of insurance that PSP is required to maintain pursuant to this Section 6.1. 6.2 Indemnification 735380.2 PSP, as a material part of the consideration to be rendered to the City under this Agreement, hereby waives claims against the City for damage to equipment or other personal property, trade fixtures, improvements, goods, wares, inventory and merchandise in, upon or about the Stadium and for injuries to persons in or about the Stadium from any cause arising at any time. PSP agrees to indemnify the City, its officers, agents and employees against and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities") that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of PSP, its agents, employees, subcontractors or invitees provided for herein, or arising from the negligent acts or omissions of PSP hereunder, or arising from PSP's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: a. PSP shall defend any action or actions filed in connection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; b. PSP shall promptly pay any judgment rendered against the City, its officers, agents or employees for any claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of PSP hereunder; and PSP agrees to save and hold the City, its officers, agents and employees harmless therefrom; C. In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against PSP for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of PSP hereunder, PSP agrees to pay City, its officers, agents or employees and or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 6.3 Sufficiency of Insurer or Surety The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide The Ka Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (Risk Manager) due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, PSP agrees that the minimum limits of the insurance policies and the performance bond required by this Section 6 may be changed accordingly upon receipt of written notice from the Risk Manager, provided that PSP shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 7. RECORDS AND REPORTS 7.1 Reports PSP shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 7.2 Records PSP shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such ' 35380.2 books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. S. ENFORCEMENT OF AGREEMENT 8.1 California Law This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and PSP covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 8.3 Waiver No delay or omission in the exercise of any right or remedy by a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.4 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.5 Legal Action In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.6 Termination for Default of PSP If PSP fails to cure a default within the time periods set forth in Section 8.2 above, then the City, in addition to any other rights or remedies it may have in law or equity, shall have the immediate 735380.2 right to remove all persons and property from the Stadium and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of PSP, all without services of notice or resort to legal process without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby and may unilaterally terminate this Agreement by written notice effective three (3) calendar days after said notice. 8.7 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non -Liability of City Officers and Employees No officer or employee of the City shall be personally liable to PSP, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested in violation of any state statute or regulation. PSP warrants that it has not paid or given and shall not pay or give any third party any money or other consideration for obtaining this Agreement. 9.3 Covenant Against Discrimination PSP covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. PSP shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 10. MISCELLANEOUS PROVISIONS 10.1 Notice Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743, and, in the case of PSP, to Andrew Starke, 2140 E. Rochelle, Palm Springs, California 92262. Either party may change its address by notifying the other party of the change of 735380.2 address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 10.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 10.3 Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that this invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provision of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. 10.6 Release PSP hereby releases and forever discharges City from and against any and all claims, demands, actions and causes of action whatsoever which PSP may have or may hereafter have specifically arising in any way out of the exercise by PSP of the rights afforded by this Agreement. This is a complete and final release and shall be binding upon PSP and covers claims arising out of or connected with PSP's presence and/or the use of all or any portion of the Stadium by PSP. 10.7 Assignment PSP may not assign this Agreement, or any right under it, whether voluntarily or by operation by law, to an affiliate or any third party without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. As a condition precedent to any assignment, the assignee must execute an assumption agreement assuming all of the obligations under this Agreement. PSP shall not be relieved of its obligations under this Agreement in the event of an assignment. 10.8 Termination The Contract Officer may terminate this Agreement for the convenience of the City at any time, with or without cause, in whole or in part, upon giving PSP written notice at any time after the 735380.2 last home game of each Season and at least sixty (60) days prior to the first home game of each subsequent Season. Such termination shall become effective on the 30`' day after the date of the notice of termination. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. DATED: 'I ATTEST: 411 ityClerk 6A, -jt5jt811 APPROVE TO FORM: City ttomey DATED: 4 - S ` 1 "CITY" CITY OF PALM SPRINGS BY• .. _ City Manager By: Director of Parks and Recreation APPROVED By CITY COUNCIL a'1- w N "PSP" PALM SPRINGS POWER BASEBALL CLUB By: 11, Chief Executive Officer 7353802 SECOND AMENDMENT TO AGREEMENTTO USE FACILITIES This Second Amendment to the Agreement to Use Facilities with Palm Springs Power Baseball ("Second Amendment" or "Amended Agreement") is made and entered into this Oh day of January, 2009, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City") and Palm Springs Power Baseball, a California Corporation ("PSP") and amends that certain "Agreement to Use Facilities" (the "Agreement") dated May 3, 2006 between the same parties. RECITALS A. On or about May 3, 2006, City and PSP entered into an "Agreement to Use Facilities" pursuant to which PSP was granted non-exclusive use of the Palm Springs Stadium ("Stadium"), located at 1901 East Baristo Road, for the purpose of holding a series of collegiate all-star baseball games during the baseball season for the Pacific Southwest League. B. PSP would like to participate in a Winter Baseball League known as the Arizona Winter League and has requested additional use of the Palm Springs Stadium. C. The existing Agreement to Use Facilities with PSP does not allow additional use of the Stadium without the consent of the City. D. City and PSP desire to amend the Agreement to extend the use of the Stadium to accommodate the additional dates needed for the new winter baseball league. AGREEMENT The Agreement is hereby amended as follows: 1. "1B.9 In addition to the foregoing, PSP shall have nonexclusive use of the entire Stadium for its approximately eight (8) home games of the professional baseball team owned by PSP, known as the Palm Springs Chill ("Team") during the baseball season for the Arizona Winter League ("Season") commencing at 1:05 p.m. for Friday, Saturday and Sunday games from January 31, 2009 through, 0R1G1jJAL r «WENT 0 February 27, 2009. and ending three (3) hours after the completion of each home game." 2. "3.1 Fixed Rental. PSP shall pay to the City an amount equal to Three Hundred Sixty -Two Dollars ($362), or such amount as the Council may adopt by resolution within the Comprehensive Fee Schedule, for each home game of PSC. Rent shall be paid to the City on or before the first of each month, in advance." 3. Except as expressly provided herein, all other terms and conditions of the Agreement shall remain in full force and effect. [Signature Block on Next Page] IN WITNESS WHEREOF, the parties hereto executed this First Amendment to be effective as of the Date first written above. ST: ity Clerk APPRO AS TO FORM: City Attorney CITY OF PALM SPRINGS, a municipal corporation By: - .. City Man er Palm Springs Power Baseball Name: haarttj A-C-ck-e- Title: Cha-evw,,A APPROW'D BY CITY COUNCIL APPROVED BY CnY MANAGER H"bkk 1 I FIRST AMENDMENT TO AGREEMENTTO USE FACILITIES This First Amendment to the Agreement to Use Facilities with Palm Springs Power Baseball ("First Amendment" or "Amended Agreement") is made and entered into this 171h day of October, 2007, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City") and Palm Springs Power Baseball, a California Corporation ("PSP") and amends that certain "Agreement to Use Facilities" (the "Agreement") dated May 3, 2006 between the same parties, RECITALS A. On or about May 3, 2006, City and PSP entered into an "Agreement to Use Facilities" pursuant to which PSP was granted non-exclusive use of the Palm Springs Stadium ("Stadium"), located at 1901 East Baristo Road, for the purpose of holding a series of collegiate all-star baseball games during the baseball season for the Pacific Southwest League. B. PSP would like to participate in a Winter Baseball League known as the Arizona Winter League and has requested additional use of the Palm Springs Stadium. C. The existing Agreement to Use Facilities with PSP does not allow additional use of the Stadium without the consent of the City. D. City and PSP desire to amend the Agreement to extend the use of the Stadium to accommodate the additional dates needed for the new winter baseball league. AGREEMENT The Agreement is hereby amended as follows: Z 1. "1 B.8 In addition to the foregoing, PSP shall have nonexclusive use of the entire Stadium for its approximately eight (8) home games of the professional baseball p team owned by PSP, known as the Palm Springs Chill ("Team") during the baseball season for the Arizona Winter League ("Season") commencing at either o c� C1 6:05 p.m. for Friday evening games or 4:05 p.m. for Saturday and Sunday - 4 afternoon games from February 1, 2008 through Sunday, February 24. and ending three (3) hours after the completion of each home game." 2. "3.1 Fixed Rental. PSP shall pay to the City an amount equal to Three Hundred Sixty -Two Dollars ($362), or such amount as the Council may adopt by resolution within the Comprehensive Fee Schedule, for each home game of PSC. Rent shall be paid to the City on or before the first of each month, in advance." 3. Except as expressly provided herein, all other terms and conditions of the Agreement shall remain in full force and effect. [Signature Block on Next Page] n IN WITNESS WHEREOF, the parties hereto executed this First Amendment to be effective as of the Date first written above. APPROVED AS TO FORM: City A CITY OF PALM SPRINGS, a municipal corporation B( City Manager APPROVED BY CITY COUNCIL Palm Springs Power Baseball Name: A lic-ei,J, Title:��,� �� Palm Springs Power Baseball Use of Stadium Agreement A5282 AGREEMENT TO USE FACILITIES MO 7857 05-03-06 This Agreement to Use Facilities ("Agreement") is made and entered into this _*_ day of 2006, by and between the CITY OF PALM SPRINGS ("City"), a California charter'city, and PALM SPRINGS POWER ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. it is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium ("Stadium"), the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide competitive collegiate -level baseball entertainment for residents and visiting youth and adults at the Stadium. 1A.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 9B GRANT OF NON-EXCLUSIVE USE 1 B.1 The City grants PSP the nonexclusive use of the following portions of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 1 B.2 PSP shall have the exclusive use of the offices located at the Stadium during the term of this Agreement, except the City may grant third parties utilizing the Stadium the right to use the box office on days that PSP is not hosting home games or a toumament. 1 B.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all baseball games held for or on behalf of PSP during the term of this Agreement. 1 BA Subject only to the City's Fourth of July Fireworks event, PSP shall have the exclusive use of the entire Stadium for its approximately forty (40) home games of the collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), during the baseball season for the Pacific Southwest League ("Season"), plus all tournaments hosted by the Team, commencing at 6:00 a.m. on the date of such home game or tournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team, but not later than April 30 of each year the agreement is in effect. ORIGINAL BID 1` AND/OR AGREEMENT C 1 B.5 For the period commencing with the first home game and ending with the last home game of the Team or tournament to be hosted by the Team, whichever is later, PSP shall have the exclusive right to use the locker rooms located at the Stadium. 1 B.6 During the term of this Agreement, PSP shall remain a member in good standing of the Pacific Southwest League. 1 B.7 Within five (5) days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the locker rooms, offices and concession areas. PSP's schedule shall take precedence in all scheduling of the Stadium. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times thatwill not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 2. AREAS OF RESPONSIBILITY 2.1 Use 2.1.1 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, and the sale of concessions during home games. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights priorto and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. Similarly, each game, PSP shall be responsible to ensure that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.2 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for which the Stadium is hereby rented to PSP. In addition, this Agreement does not permit PSP to use the practice field. However, PSP may apply to the Contract Officer to use the Stadium or the practice field for other baseball -related events through the City's standard Facility Use Application process. PSP shall not sell or permit to be kept, used, displayed, or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies or (b) any alcoholic beverages unless expressly approved in advance by the Contract Officer. 2.1.3 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concession stand equipment. 2.1.4 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff, members and guests use the Stadium. 2 4- L 2.1.5 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP. The term"environmental law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term "hazardous material" includes, without limitation, any material or substance that is (i) defined or listed as a "hazardous waste," "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contract Officer of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment, and concession facilities within the Stadium during home games and toumaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets. The City reserves the right to retain concessions for City -sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and tournament games and for the sale of concessions shall be uniform, except that PSP shall provide discounted admission prices for children under twelve (12), students and adults over sixty-five (65) years of age, and subject to the prior approval of the Contract Officer, which approval shall not be unreasonably withheld. The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 3 0 0 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall remain in place from March 1 through December 31 of each year the agreement is in effect. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at www.ci.palm-sprinps.ca.us. The parties agree that said link may be "framed" whereby material or pages from the linked website appear in a frame on the site which creates the link. The parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy or completeness of materials contained on their respective websites and agree to hold each other harmless from any special, indirect, incidental or consequential damages that may arise from the use of or the inability to use the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or PSP. 2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full -page four-color advertisement on the inside of the PSP's official program for marketing and promotion purposes. 2.4 Repairs and Maintenance 2.4.1 PSP shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium and the adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium, PSP shall be deemed to have accepted the Stadium as being in a good, neat, clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 2.4.2 The City hereby agrees to mow, water, seed and otherwise maintain the playing field of the Stadium in a condition satisfactory to conduct independent league baseball games, provided that PSP shall be 4 RY responsible for preparation of the infield for all home games and tournament games. The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis, to be operable at the time of all home games and tournament games. The City shall be responsible for cleaning the Stadium to a good, neat, clean and orderly condition after third -party events and prior to the start of each baseball season no later than Memorial Day of each year. 2.4.3 Before June 1, 2007, Citywill paint the exterior of the Stadium subject to architectural approval by the City's Planning Commission specific to paint color. 2.5 Utilities 2.5.1 The City shall provide and maintain all utilities for the Stadium, including water, gas, and electricity except as noted below in Section 2.5.2. PSP hereby waives any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency, or impairment in the provision of utilities to the Stadium. 2.5.2 PSP will pay the full cost of the utilities needed for outfield lighting in the amount as the City may establish from time to time and charge the City's Parks and Recreation Department. The outfield lighting will be metered and billed separately by the Cityto PSP. PSP will have exclusive control of one (1) of three (3) key -operated electrical meters in the Stadium which will provide full control over the use of the outfield lighting. PSP will also pay an equal to one-third of the Southern California Edison Demand Charge for electrical service to the Stadium each month in which the outfield lighting is used or there is a registered use on PSP's assigned meter. Payment will be due the City within fifteen (15) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the Contract Officer, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contract Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and 5 the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by PSP. 2.7 Capital Improvements During the original three-year term of this Agreement and any extension thereof, PSP agrees to pay the City the sum of at least Ten Thousand Dollars ($10,000) per year, due on or before October 1 of each year, and the City agrees to contribute the sum of Twenty Thousand Dollars ($20,000) per year from its annual Measure Y allocation, all sums being used to make specific capital improvements ("Projects") at the Stadium as identified and agreed to pursuant to this Section 2.7. In the event that Measure Y funds are not available to the City during any fiscal year or the City Council of the City determines in its sole discretion that there are insufficient Measure Y funds available for Stadium improvements during any fiscal year, the City shall not be obligated to make any contribution toward Stadium improvements pursuant to this Section 2.7 for each such fiscal year. PSP and City agree that on or before December 31 of each year during the term of this Agreement and any extension thereof, the parties will meet to confer and determine which Projects shall be done for that current fiscal year. 2.8 Damage and Destruction In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadium or (b) the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repairthe Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.9 Compliance with Law PSP shall use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.10 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law forthe use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 2.11 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good 6 3. faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 2.12 Prohibited Activities. 2.12.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.12.2 Vending machines are prohibited. 2.12.3 The sale of tobacco, gum, and all other items that create safety or litter problems, as determined by the Contract Officer, is prohibited. 2.12.4 The sale of any item which is contained in glass or a metal container is prohibited. 2.12.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.13 Security and Access Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental PSP shall pay to the City an amount equal to Three Hundred Fifty Dollars ($350), or such amount as the Council may adopt by resolution within the Comprehensive Fee Schedule, for each home game and day of tournament play ("Rent"). Rent shall be paid to the City on or before the first of each month, in advance. 3.2 Security Deposit PSP shall provide City with a security deposit in the sum of One Thousand Dollars ($1,000) due on or before May 1, 2006. City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in anyway diminish or be construed as 7 waiving any of the City's other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by Cityto PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City under this Agreement, shall be made after sixty (60) days have elapsed following the effective date of said termination. 3.3 Percentage Gate Should PSP's paid gate attendance exceed one thousand (1,000) people for any home game or day of tournament play, PSP shall be required to pay to the City, on a monthly basis commencing on the fifteenth (15t') day of the month following the month in which the first home game is played, on or before the fifteenth (150) day of each month, an amount equal to twenty percent (20%) of the amount of the total paid gate receipts for attendance in excess of one thousand (1,000) for that day. 3.4 Percentage of Concessions Should PSP's paid ticket sales exceed one thousand (1,000) people for any home game or day of tournament play, PSP shall pay to the City for each occurrence, on a monthly basis commencing on the fifteenth (15t') day of the month following the month in which the first home game is played, on or before the fifteenth (15t') day of each month, an amount equal to fifteen percent (10%) of the amount of gross sales for food and beverage concessions made in, upon or from the Stadium for the preceding month for all home games and tournament games and an amount equal to eighteen percent (18%) of the amount of gross sales for food and beverage concessions made in, upon or from the Stadium during the preceding month for all Stadium events other than home games or tournament games hosted by the Team. The term "gross sales," as used herein, means the total gross receipts for food and beverage concessions sold and fees charged by PSP for food and beverage concessions, whether for cash or credit or otherwise, and including the valuable consideration otherthan money received for any of the foregoing, without reserve or deduction for inability orfailure to collect, including, but not limited to, sales and leases. Gross sales shall include the full retail price of any merchandise delivered or redeemed for coupons and all deposits not refunded to purchasers. Gross sales shall not include sales taxes, consumer excise taxes, gross receipt taxes and other similar taxes now or hereafter imposed upon the sale of merchandise or services, but only if collected separately from the selling price and collected directly from customers. PSP shall keep at the Stadium full, complete, and proper books, records and accounts of its daily gross sales and gate receipts, both for cash and on credit, at all times during the term of this Agreement. The Contract Officer shall have the right at any and all times during regular business hours to examine and inspect all books and records of PSP, including any sales tax reports pertaining to the business of PSP conducted in, upon or from the Stadium for the purpose of investigating and verifying the accuracy of any statement of gross sales and gate receipts and to cause an audit of the business of PSP to be made by an accountant of the City's selection. If the statement of gross sales or the statement of gate receipts previously made to the City shall be found to be inaccurate, then, and in that event, there shall be an adjustment and one party shall pay the other on demand such sums as may be necessary to settle in full the accurate amount of such percentage rental or gate receipts that should have been paid to the City for the period or periods covered by such inaccurate statement or statements. If said audit shall disclose an inaccuracy of greater than three percent (3%) with respect to the amount of gross sales or gate receipts reported by PSP, then PSP shall immediately pay to the City the cost of such audit; otherwise, the cost of such audit shall be paid by the City. 3.5 Real and Personal Property Taxes In addition to all other payments herein reserved, PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment and all other personal property of PSP located in the Stadium. 3.6 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunderwill cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by PSP not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.7 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non -usurious rate permitted by law, in which case interest shall be the maximum non -usurious rate allowed by law at the time the sum became due. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement, the term of this Agreement shall be for a period of three (3) years commencing on May 1, 2006 and terminating on December 31, 2009. At the discretion of the City Manager, this Agreement may be extended for two (2) two-year terms upon the expiration of the original term. 9 S. COORDINATION OF WORK 5.1 Representative of PSP The following principals of PSP are hereby designated as being the principals and representatives of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke 1832 North Mira Loma Way Palm Springs, CA 92262 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City's Department of Parks and Recreation Director or the designee or designees of the Director. It shall be the PSP's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to cant' out the terms of this Agreement. 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, capability and reputation of PSP, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, sublet, hypothecated or otherwise transferred voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of Contract Officer. However, PSP may subcontract or assign the concession sales to a licensed vendor upon prior written approval by the Contract Officer. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent (50%) of the present ownership and/or control of PSP, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release PSP of any liability hereunder without the express consent of Contract Officer. 5.4 Independent Contractor Neither City nor any of its employees shall have any control over the manner, mode or means by which PSP, its agents or employees perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of PSP's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. PSP shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent 10 contractor with only such obligations as are consistent with that role. PSP shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of PSP in its business or otherwise or a joint venturer or a member of any joint enterprise with PSP. 6. INSURANCE, INDEMNIFICATION AND BONDS 6.1 Insurance PSP shall procure and maintain, at its sole costs and expense, in a form and content satisfactory to Contract Officer, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: a. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per -occurrence basis in an amount not less than either (i) a combined single limit of One Million Dollars ($1,000,000) for bodily injury, death and property damage or (ii) bodily injury limits of Five Hundred Thousand Dollars ($500,000) per person, One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) products and completed operations and property damage limits of Five Hundred Thousand Dollars ($500,000) per occurrence and Five Hundred Thousand Dollars ($500,000) in the aggregate. b. Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both PSP and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by PSP in the course of carrying out the work or services contemplated in this Agreement. c. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per -occurrence basis in an amount not less than either (i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars ($250,000) per person and Five Hundred Thousand Dollars ($500,000) per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000) per occurrence and Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate or (ii) combined single limit liability of Five Hundred Thousand Dollars ($500,000). Said policy shall include coverage for owned, non -owned, leased and hired cars. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days' prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, PSP shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 6.1 to the Contract Officer. No work or services under this Agreement shall commence until PSP has provided City with certificates of insurance or appropriate insurance binders evidencing the above insurance coverage and said certificates of insurance or binders are approved by City. 11 PSP agrees that the provisions of this Section 6.1 shall not be construed as limiting in any way the extent to which PSP may be held responsible for the payment of damages to any persons or property resulting from PSP's activities or the activities of any person or persons for which PSP is otherwise responsible. In the event PSP subcontracts any portion of the work in compliance with Section 5.3 of this Agreement, the contract between PSP and such subcontractor shall require the subcontractorto maintain the same policies of insurance that PSP is required to maintain pursuant to this Section 6.1. 6.2 Indemnification PSP, as a material part of the consideration to be rendered to the City under this Agreement, hereby waives claims against the City for damage to equipment or other personal property, trade fixtures, improvements, goods, wares, inventory and merchandise in, upon or about the Stadium and for injuries to persons in or about the Stadium from any cause arising at any time. PSP agrees to indemnify the City, its officers, agents and employees against and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities") that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of PSP, its agents, employees, subcontractors or invitees provided for herein, or arising from the negligent acts or omissions of PSP hereunder, or arising from PSP's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: a. PSP shall defend any action or actions filed in connection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attorneys, fees incurred in connection therewith; b. PSP shall promptly pay any judgment rendered against the City, its officers, agents or employees for any claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of PSP hereunder; and PSP agrees to save and hold the City, its officers, agents and employees harmless therefrom; c. In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against PSP for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of PSP hereunder, PSP agrees to pay City, its officers, agents or employees and or employees in such action or proceeding, including, but not limited to, legal costs and attomeys' fees. 6.3 Sufficiency of Insurer or Surety The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most 12 recent edition of Best Rating Guide, The Key Ratina Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, PSP agrees that the minimum limits of the insurance policies and the performance bond required by this Section 6 may be changed accordingly upon receipt of written notice from the Risk Manager, provided that PSP shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 7. RECORDS AND REPORTS 7.1 Reports PSP shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 7.2 Records PSP shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and PSP covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this section shall be a condition precedent to 13 termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 8.3 Waiver No delay or omission in the exercise of any right or remedy by a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default conceming the same or any other provision of this Agreement. 8.4 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.5 Legal Action In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.6 Termination for Default of PSP If PSP fails to cure a default within the time periods set forth in Section 8.2 above, then the City, in addition to any other rights or remedies it may have in law or equity, shall have the immediate right to remove all persons and property from the Stadium and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of PSP, all without services of notice or resort to legal process without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby and may unilaterally terminate this Agreement by written notice effective three (3) calendar days after said notice. 8.7 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attomeys' fees shall include attomeys' fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 14 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non -Liability of City Officers and Employees No officer or employee of the City shall be personally liable to PSP, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested in violation of any state statute or regulation. PSP warrants that it has not paid or given and shall not pay or give any third party any money or other consideration for obtaining this Agreement. 9.3 Covenant Against Discrimination PSP covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. PSP shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 10. MISCELLANEOUS PROVISIONS 10.1 Notice Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743, and, in the case of PSP, to the person at the address designated in Section 5.1 of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 10.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 10.3 Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and 15 all previous negotiations, arrangements, agreements and understandings, if any, between the parties and none shall be used to interpret this Agreement. This Agreement may be amended at anytime by the mutual consent of the parties by an instrument in writing. 10.4 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that this invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provision of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. 10.6 Release PSP hereby releases and forever discharges City from and against any and all claims, demands, actions and causes of action whatsoever which PSP may have or may hereafter have specifically arising in any way out of the exercise by PSP of the rights afforded by this Agreement. This is a complete and final release and shall be binding upon PSPBF and covers claims arising out of or connected with PSP's presence and/or the use of all or any portion of the Stadium by PSP. 10.7 Assignment PSP may not assign this Agreement, or any right under it, whether voluntarily or by operation by law, to an affiliate or any third party without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. As a condition precedent to any assignment, the assignee must execute an assumption agreement assuming all of the obligations under this Agreement. PSP shall not be relieved of its obligations under this Agreement in the event of an assignment. (SIGNATURES CONTINUED TO NEXT PAGE) 16 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. "CITY" CITY OF PALM SPRINGS By: City Manager Date: Director of Parks and Recreation Date:. Atte APPROVED BY CITY COUNCIL ity Clerk rove s to form: City Att mey "PSPBC" PALM SPRINGS POWER BASEBALL CLUB 17 EXHIBIT "A" TO AGREEMENT TO USE FACILITIES BY AND BETWEEN CITY OF PALM SPRINGS AND PALM SPRINGS POWER CAPITAL IMPROVEMENTS Projects may include, but are not limited to, repair and/or facility improvements to one or more of the following: Painting of building interior and/or exterior; Stadium office remodeling; Concession upgrades; Restroom and/or locker room upgrades; Batting cage upgrades; Press box, public address system, and misting system upgrades; Dugout upgrades; Scoreboard repair and/or replacement. If any improvement that has been mutually agreed up by both parties is solely paid for by either PSP or the City, the cost of such improvement will be credited toward that party's annual obligation. EXHIBIT "A" Page 1 of 1 EXHIBIT "B" TO AGREEMENT TO USE FACILITIES BY AND BETWEEN CITY OF PALM SPRINGS AND PALM SPRINGS POWER City agrees to waive Section 3.3 Percentage of Gate, and Section 3.4 Percentage of Concessions, within the agreement for any three (3) play dates each year of the agreement. As an example, one of the following three dates would qualify. 1. Opening Day 2. Day After Opening Day 3. Fourth of July EXHIBIT "B" Page 1 of 1