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HomeMy WebLinkAboutA9467 - Plaza Theatre (Management Operation and Entertainment Production Services)AGREEMENT FOR MANAGEMENT, OPERATION AND ENTERTAINMENT PRODUCTION SERVICES FOR THE HISTORIC PLAZA THEATRE BY AND BETWEEN THE PALM SPRINGS PLAZA THEATRE FOUNDATION 0 THE CITY OF PALM SPRINGS 55575.18100141879930.1 AGREEMENT FOR MANAGEMENT, OPERATION AND ENTERTAINMENT PRODUCTION SERVICES FOR THE HISTORIC PLAZA THEATRE BY AND BETWEEN THE PALM SPRINGS PLAZA FOUNDATION AND THE CITY OF PALM SPRINGS Ibis agreement for management, operation, and entertainment production and assistance services for the Historic Plaza Theatre ("Agreement") is entered into, as of July 24, 2023 for reference purposes only, by and between the City of Palm Springs, a California charter city and municipal corporation ("City") and The Palm Springs Plaza Theatre Foundation, a California nonprofit corporation ("Foundation"), referred to individually as a "Party" and collectively as the "Parties". RECITALS WHEREAS, the City is the owner of the historic Plaza Theatre, located at 128 South Palm Canyon Drive, Palm Springs California (the "Plaza Theatre" or "Theatre"); WHEREAS, the City acquired the Plaza Theatre from the former Palm Springs Community Redevelopment Agency, with the understanding that the City will assume the financial responsibility of the renovations after the acquisition and that the City will secure a new operator and that the Plaza Theatre will be maintained as a historic structure and performing arts venue; WHEREAS, the Foundation was established as a nonprofit public benefit corporation in the State of California on October 21, 2021, and thereafter obtained its status as a 501(c)(3) organization; WHEREAS, the Foundation's corporate purposes include providing funds for the restoration, renovation, reconstruction, maintenance or operation of the Theatre; WHEREAS, the Foundation has raised funds sufficient to renovate and reconstruct the Theatre to its historic grandeur; WHEREAS, the Parties now wish to enter into this Agreement, in order to provide for the management, operation and entertainment production services for the Theatre, in an effort to carry out the Parties' intent that the Theatre be maintained as a community asset and operated for the benefit of the public. NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows: Section I. Purpose The purpose of this Agreement is to state the terms and conditions under which the Foundation will manage and operate the Plaza Theatre (including maintenance, but not repair, as set forth more fully below), produce entertainment presentations at the Plaza Theatre, and provide production assistance services for entertainment presentations presented by other users of the Plaza 55575. 18 1 00\41979930.1 Theatre (collectively, the "Services"). The Foundation may provide these services itself, or through a third -party selected by Foundation and approved by the City. Section II. Related Agreements. The Foundation may contract with a professional theatre management firm (a "Management Firm") for the performance of the Services and the fulfillment of one or more of the Foundation's obligations under this Agreement. In the event the Foundation desires to provide the Services by way of such Management Firm, such arrangement shall be memorialized in writing. If the Foundation desires to contract with a Management Firm for the management of the Theatre, such third party must be a professional theatre management firm or company. Such third party agreement shall incorporate the provisions of this Agreement. The City shall have the authority to reject/veto any Management Firm; provided, however, that the City shall not have the authority under this Agreement to approve or disapprove other employees, contractors or subcontractors that the Foundation or Management Firm may choose to engage. Section III. Term. The term ("Term") of this Agreement shall be ten (10) years, commencing on January 1, 2024 through and including December 31, 2033, unless sooner terminated as provided herein or unless extended by the written mutual agreement of the Parties. Section IV. Services to be Performed A. Exclusive Management and Operational Responsibility. Foundation shall assume exclusive management and day-to-day operational responsibility for the Plaza Theatre, including, but not limited to: (1) the maintenance obligations delineated in Exhibit A "Responsibility for Maintenance and Repairs"; (2) arranging for continuous security for the Plaza Theatre premises and all contents thereof, as set forth below; (3) providing supervision, coordination and technical support for other users of the Plaza Theatre; (4) establishing, collecting, depositing and accounting for payments made by other users of the Plaza Theatre; (5) at its own expense, hiring and contracting with consultants, and other professionals or experts that the Foundation, in its sole discretion, determines are necessary to perform its obligations and responsibilities under this Agreement; (6) employing, supervising, and terminating staff to perform its obligations and responsibilities under this Agreement; and, -2- 55575.18100141879930.1 () taking such other actions, making all decisions, and entering into such contracts and agreements with third parties as may be required to perform the obligations and responsibilities required by this Agreement. B. Entertainment Productions. The Foundation shall produce or cause to be produced live entertainment presentations in the Plaza Theatre, through its own efforts or in collaboration or by agreement with other performing artists. The Theatre shall primarily be used for performances and events of the highest quality, including, but not limited to, concerts, chamber orchestra performances, film festivals, the short film festival, community meetings, addresses, conventions, cabaret performances, booked acts, lectures, music festivals, ideas festivals, charity and fundraising events, and other theater performances and events (`'Entertainment Presentations"). The Foundation will limit "community theater" or amateur productions to twenty-one (21) days per year, which productions may (but need not necessarily be) a City Use as defined in Section VI(B)(3) below. 1. Reouired Performances. During each calendar year this Agreement is in effect, the Foundation shall produce and present, or cause to be produced and presented a combined total of not fewer than fifty-two (52) performance days of Entertainment Presentations, as hereinafter defined. Absent an intervening cause, as set forth in Section VIII.E (Force Majeure), the period during which no performances of Entertainment Presentations is presented shall not exceed forty-five (45) days. C. Production Assistance Services. The Foundation shall encourage and assist other artists and groups to use the Plaza Theatre to produce and present Entertainment Presentations. Production assistance services provided to other users shall include: operation of the box office and ticket sales; marketing and promotional consultation; and such other services and assistance as may be required to ensure quality presentation and appropriate use of the Plaza Theatre as set forth in this Agreement. The Foundation may charge such other users Co -Production Fees for these services. D. Marketin¢. The Foundation shall undertake to market the Plaza Theatre Theater for Entertainment Presentations. Section V. Financial A. Financial Responsibility. The Foundation shall be financially responsible for the management and operation of the Plaza Theatre, except as specifically provided in this Agreement. B. Co -Production Fees and Eguipment Rental Fees. The Foundation shall have the authority to charge users fees for rental and use of the Plaza Theater, including equipment in the Plaza Theatre, as well as for Production Assistance Services. The Foundation shall retain such rental and co -production fees for its own use. C. Ticket and Concession Prices. The Foundation shall have the authority to fix the prices to be charged for tickets to its Entertainment Presentations and the prices for concession items, including food, beverages and novelties. The Foundation shall retain all revenue generated pursuant to this section. -3- 55575.18100W 1879930.1 D. Accounting and Financial Records and Reporting, 1. Accounting Records. The Foundation shall, during the term of this Agreement and for a period of three (3) years after its termination, maintain complete and accurate accounting records and systems, utilizing the standard classification of accounts and Governmental Accounting Standards, and supporting documentation for all revenue generated and operating expenses incurred pursuant to this Agreement. 2. Annual Audit Reports. Not more than 120 days after the close of its fiscal year, the Foundation shall submit to City an audited financial statement prepared by an independent certified public accountant for the previous fiscal year. In addition to the financial statement, the Foundation shall submit an audited supplemental statement that segregates certain operations of the Plaza Theatre from other operations of the Foundation. The segregated operations to appear in the supplemental statement shall include the following: revenues, ticket sales, subscription sales, concession sales, rental fees and co -production fees paid by other users, and direct expenses associated with the operation of the Plaza Theatre, including, utilities, maintenance of the premises, and maintenance of the FF&E. Within 120 days following the termination of this Agreement, a final report shall be submitted to City covering the period between the last report and the termination date. 3. Other Financial Reports. The Foundation shall provide to City, upon reasonable request, written financial and other reports and access to inspect all operational and financial records and data pertaining to the services provided under this Agreement. Section VI. Rights and Obligations of the Parties. A. Covenants By City. City agrees and covenants that during the term of this Agreement: 1. City Costs. City shall pay the actual cost of property insurance, property taxes (if any), possessory interest tax (if any), and costs required to perform its repair obligations as set forth in Exhibit A. City shall pay the cost of any utilities for the first four (4) years following the opening of the Theatre. 2. Exterior Cleaning. City shall be responsible for the regular cleaning of the exterior portions of the Plaza Theatre premises. City shall periodically sweep and clean the sidewalks adjacent to the premises and outside courtyard areas, in order to keep these areas in a clean, safe and neat condition. 3. Re air. City shall be responsible for any and all repairs to the Plaza Theatre premises, including, without limitation, structural repairs, the electrical system, broken windows, underground or in -wall plumbing repairs, repairs to the HVAC system, the roof and any exterior improvements, as set forth in Exhibit A. Foundation agrees that it will not, nor will it authorize any person to go onto the roof of the building without the prior written consent of City. City shall respond, within a reasonable time period, to Foundation's non -emergency requests for repairs. City shall respond 24 hours a day, 7 days a week for emergency repairs to the Plaza Theatre premises. For purposes of this section, "emergency" shall mean a sudden, unexpected occurrence -4- sss7s.1EtWAIE7"3o.1 that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, or property. 4. Security Video Monitoring and Alarm Systems. City shall connect the Plaza Theatre premises to the City's security video monitoring system for the monitoring of City properties and the City's electronic alarm system. City shall provide the initial response to any alerts or notices produced by the City's electronic alarm system, and shall notify the Foundation (and any Management Firm) of such incidents as quickly as possible. B. Covenants By the Foundation. The Foundation agrees and covenants that during the term of this Agreement: 1. Operating Costs. The Foundation shall pay all costs associated with its occupancy of the Plaza Theatre and its business operations, including performance of the Services required by this Agreement and costs required to perform its maintenance obligations as set forth in Exhibit A. The Foundation (or the Management Firm) shall be responsible to pay the cost of any utilities associated with the Theatre, following the first four (4) years after opening of the Theatre. The Foundation shall keep the Plaza Theatre premises free from any liens arising out of any Services performed, material furnished, or obligation incurred by Foundation or alleged to have been incurred by Foundation. 2. Maintenance. Foundation shall be responsible for the minor cosmetic maintenance of the Plaza Theatre premises, such as vacuuming, window cleaning, mopping, painting, light bulb changes, regular deep cleaning of the premises, and small drywall repairs, as set forth in Exhibit A. 3. City Use of the Plaza Theatre. Foundation agrees to provide the Plaza Theatre facilities to City rent-free for City's uses as outlined below. Use of the Theatre by the City shall include, but not be limited to: (a) City governmental purposes (such as meetings of the City Council, boards/commissions, staff, or personnel testing, town hall meeting or other governmental purpose), (b) City -authorized meetings or events held by other public agencies (such as the Palm Springs Unified School District, Desert Water Agency, or the College of the Desert), (c) meetings or events held by non -profits and which are sponsored by the City (such as the State of the City) (collectively "City Uses'). All requests by City for City Uses shall be subject at all times to availability due to prior confirmed event scheduling for the Plaza Theatre facilities. Use by the City for City Uses shall be rent-free, shall be limited to eighteen (18) event days per year, with this number being subject to modification by the Parties pursuant to Operating Memoranda, as set forth in Section VIII(P), below. Use by of the Theatre for City Uses shall be rent-free, but City shall reimburse the Foundation for any actual and reasonable costs/expenses incurred for labor, equipment, food and beverage, audio-visual or other customary expenses associated with the City Use of the Theatre. Such reimbursement shall be at a reimbursement level that is no higher than the level charged by the Foundation to non-profit entities. 4. Palm Snrings International Film Festival Use. As set forth in City Council Resolution 24614, the Palm Springs International Film Society shall be entitled to use the Plaza Theatre during the period of the annual Film Festival during the first two weeks of each January. Nothing in this Agreement shall prevent the Foundation from charging the Society a rental/usage INE 55575. 19100\41879930.1 fee, provided that such rental/usage fee is the lowest category of rental/usage fees charged to any other user. The Society's use pursuant to this Section 4 shall not count toward the "City Uses" in Section 3, nor shall the Society's use pursuant to this Section 4 qualify as a "community theater" or amateur production for purposes of Section IV(B)(1) above. 5. Annual Schedule of Presentations. The Foundation understands and acknowledges that City has a civic responsibility to ensure community access to, and effective, efficient utilization of the Plaza Theatre. Therefore, on or before June 30 of each year, the Foundation shall submit to City for its review and comment, an Annual Schedule of Entertainment Presentations. The Annual Schedule of Presentations shall set forth the various anticipated uses, users and periods of each such use for the Plaza Theatre, for that fiscal year. CITY shall have no right to approve play selection or performance content by reason of its review of the Annual Schedule of Presentations, however City shall have the right to require the Foundation to ensure that adequate periods of time are made available for use, of the Plaza Theatre by other users, as set forth in this Agreement. The Parties recognize that the schedule is subject to change during the course of the period covered by the schedule provided. Any modifications or substitutions to the Annual Schedule of Presentations shall be promptly submitted to City for review and comment prior to implementation of the modification or substitution, or if time does not permit prior review, as soon thereafter as is reasonable and practicable. 6. Annual Marketing Plan. The Foundation shall be responsible for preparing or for causing to be prepared an annual plan approved by City for the marketing of the Plaza Theatre ("Annual Marketing Plan"). The Annual Marketing Plan shall be presented to the City for approval no later than September 30th of each calendar year this Agreement is in effect. 7. Monthly Schedule of Production Bookings. On the first day of each month, the Foundation shall submit to City a current schedule listing each of the confirmed production bookings for that month. 8. Maintenance and Equipment Replacement Schedule. Not later than March 30 of each year, the Foundation shall submit to City, for its approval, proposed schedules for facility maintenance of the Plaza Theatre. 9. Compliance with Law. The Foundation agrees to and shall, at its sole cost and expense, comply and secure compliance with all the requirements of all municipal, state, county and federal authorities now in force, or which may hereafter be in force, pertaining to the Plaza Theatre, or the operations conducted therein, and shall faithfully observe, and secure observance with, in the use of the Plaza Theatre, all municipal ordinances and state and federal statutes now in force or which may hereafter be in force. This obligation expressly includes but is not limited to compliance with any and all obligations under the Americans With Disabilities Act of 1990 ("ADA") with regard to operation and maintenance of the Plaza Theatre, but shall not include capital improvements required under ADA, provided that City as owner of the Plaza Theatre, shall be responsible for compliance with all ADA obligations for which the owners of premises are responsible under the law. Foundation 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. If Foundation performs any "maintenance" with regard to the Plaza Theatre premises, 55575. 18100411879930.1 and if the total compensation is more than $15,000 or more, Foundation agrees to fully comply with such Prevailing Wage Laws, if applicable. Foundation shall defend, indemnify and hold the City, its elected 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 is the intent of the Parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Foundation shall therefore comply with such Labor Code sections to fullest extent required by law. It shall be mandatory upon the Foundation and all of Foundation's contractors to comply with all California Labor Code provisions, which include, but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors. 10. Non -Discrimination. The Foundation shall not discriminate on the basis of actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation as these terms are defined by California Law, or association with members of classes protected under section 7.09.040 of the Palm Springs Municipal Code or in retaliation for opposition to any practices forbidden under that Section, against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, operated by the Foundation, and the Foundation shall include a similar provision in all contracts entered into pursuant to this Agreement. 11. Equal Opportunity. The Foundation acknowledges that City seeks to promote employment and business opportunities for local residents and firms on all City contracts and use of the Plaza Theatre. The Foundation will, to the extent legally possible, solicit applications for employment, and bids and proposals for subcontracts, for work associated with this Agreement from local residents and firms as opportunities occur. The Foundation agrees to hire qualified local residents and firms whenever feasible. 12. Insurance. The Foundation shall procure and maintain, at its sole cost and expense, insurance as set forth in Exhibit B. The types, amounts of coverage may be modified by mutual agreement of the Parties, by way of Operating Memoranda, from time to time, based on the nature of the activities being undertaken. 13. Security/ Incident Reports. The Foundation shall be responsible for providing event security, in accordance with sound theatre management practices, which shall include coordination with the City's Special Events Planning Team (SEPT) for events that occur outdoors or larger than normal events. In the event any incident occurs at the Plaza Theatre, involving a guest, invitee or patron and that is reasonably likely to result in a claim for damages for personal injury and/or property damage or loss, or involves a breach of security at the Plaza Theatre, the Foundation shall prepare and deliver to City, within 24 hours of the incident, a detailed report of the facts and circumstances surrounding the incident, including the names and addresses of the persons involved in, or witnessing, the incident. Section VII. Termination. A. Termination due to Funding Reduction. The Foundation understands that the continuance of this Agreement is contingent upon continued funding from the City of Palm -7- 55575.18100\41879930.1 Springs, at an adequate level for all of City's operating expenses. City promises to use its best efforts to secure the necessary funding; however, if funding is substantially reduced Parties shall enter into exclusive negotiations, for a ninety (90) day period from the effective date of notice of the funding reduction or elimination, to modify the terms and conditions of this Agreement consistent with the available funding. During this period, the Foundation may continue to use the Plaza Theatre under the terms and conditions of this Agreement, provided it assumes all financial obligations required for operation of the Plaza Theatre operation, to the extent such costs exceed funds available to City. In the event the Parties are unable to reach agreement on modified terms, this Agreement shall terminate at the earliest possible date, but not more than ninety (90) days following the expiration of the negotiation period. In the event funding from the City of Palm Springs is terminated, this Agreement shall terminate effective the date such funding ceases. B. Termination For Cause. In the event either Party commits a breach of this agreement, the non -breaching Party may terminate this agreement by first giving written notice to the breaching Party specifying the default(s) and demanding cure of the default(s) within a commercially reasonable time. Should the Foundation, during the term of this Agreement, make any assignment for the benefit of its creditors, or voluntarily or involuntarily be declared bankrupt or file for protection under any chapter of the Bankruptcy Act, or if a receiver or liquidator shall be appointed to administer the Foundation's affairs, such action by the Foundation shall be a material breach of this Agreement, City shall give notice of such breach to the Foundation and provide a commercially reasonable time for the Foundation to cure such default. If the default(s) is not cured by the defaulting Party within the stated period, this Agreement may be terminated by the non -breaching Party with a written notice of termination stating an effective date of not less than ninety (90) days from the date of the notice. If the breaching Parry cures the default(s) following notice of termination but prior to the effective date, the non -breaching Party may, in its sole and absolute discretion and in writing, waive the notice of termination in which event this Agreement shall be reinstated. C. Rights and Obligations Upon Termination. On the effective date of termination of this Agreement, the Foundation shall provide to City the following: 1) a list of any events scheduled in the Plaza Theatre following the effective date of termination and copies of all signed contracts for such events; 2) an inventory and possession of all furniture, fixtures and equipment (FF&E) belonging to City; 3) documentation, acceptable to City, that there are no outstanding and unpaid bills for utilities or other expenses payable by the Foundation under this Agreement. Section VUL General Provisions. A. Mutual Indemnification. Except as otherwise provided herein, each Party shall indemnify and hold harmless the other Party, its officials, directors, officers, agents, employees, representatives and subcontractors, and defend against all claims, damages, losses and expenses, including attorneys' fees, arising out of or resulting from the performance of their respective duties and obligations specified herein, caused by the negligence, omission or willful act of the Party, its agents, employees, representatives and sub -contractors. B. Dispute Resolution. Prior to initiating litigation to enforce or interpret this Agreement, the Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiation as follows: -g- 55575.18100\41879930.1 1. Negotiations Between Senior Executives/Representatives. Either Party may initiate negotiations by written request to the other Party setting forth the particulars of the dispute, the terms of the Agreement involved in the dispute, and a suggested resolution. Within ten (10) days following the request, senior managers or representatives of each Party (i.e., the Chief Executive Officer of the Foundation and the City Manager of the City), shall meet to attempt a resolution of the dispute. The Parties shall continue to meet and attempt resolution until such time as either Party determines a resolution is not possible. Upon such determination, written notice shall be given to the other Party terminating dispute resolution. 2. Continued Performance During Dispute Resolution. The Parties shall continue performance of their respective obligations in accordance with this Agreement during the resolution of any dispute. C. Independent Contractor Status. In the performance of its obligations under this Agreement, the Foundation shall be an independent contractor and not an agent of City. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Foundation, its agents or employees perform the services required herein, except as otherwise set forth herein. Foundation 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. Employees or contractors of Foundation are not City employees, and employees of City are not employees or contractors of Foundation. Neither Party shall at any time or in any manner represent that it or any of its agents or employees are agents or employees of the other Party. Each Party shall be solely responsible for compliance with State and Federal Law with respect to the wages, hours, benefits, and working conditions of its employees, including requirement for payroll deductions for taxes. D. Access to The Plaza Theatre. The Foundation agrees that City and its designees shall have the right to enter the Plaza Theatre during reasonable business hours, with or without prior notice, and in the event of an emergency situation, at any time. This right of access does not, and is not intended to, grant City or its representatives or designees the right of access during or for a Entertainment Presentation for which admission is charged, without a paid ticket for admission, except in an emergency situation. E. Force M jeure. The obligation of any party to perform any acts hereunder shall be suspended during the period such performance is prevented by acts of God; war; riot; invasion; fire; accident; strike or walkout; government interference, regulation, appropriation, or rationing; or, by inability to secure goods or provide services because of the foregoing conditions. The obligation(s) shall resume upon cessation of the condition of Force Majeure. F. Notices. Any notice required herein shall be deemed to have been sufficiently given when sent by certified, registered mail, postage prepaid, or by electronic mail or facsimile, addressed to: 55575.18100\41879930.1 To City, addressed to: With a copy to: or to the Foundation, addressed to City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager Facsimile: (760) 323-8207 (m Alanaacua Vahnspringsca.cu�_ City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Attorney Facsimile: (760) 322-8317 Ims xinusca.cc,� Palm Springs Plaza Theatre Foundation 1775 E. Palm Canyon Dr. Suite 110-1028 Palm Springs, CA 92262 Attn: Chairperson Email: jr66'a mac.com and said notice shall be deemed communicated when personally delivered, sent by electronic mail or facsimile with documentation of successful transmission, or on the fourteenth (14th) calendar day following mailing by first class certified U.S. Mail, postage prepaid. G. Assignment. The Foundation shall not assign this Agreement or any rights accruing hereunder, except with the prior written permission of the City. The Foundation shall have the right to retain, hire and contract with third parties to perform operational and maintenance services required of the Foundation, subject to City's prior written approval, which shall not be unreasonably withheld. H. Amendment. No amendment of this Agreement shall be valid or binding on the Parties unless made in writing and signed on behalf of each Party by a duly authorized representative. I. Singular. Plural, and Gender. As used herein, the singular shall include the plural and the masculine shall include the feminine or neuter. J. Headings. All section and paragraph headings are for reference and convenience only and do not alter, amend, explain, interpret or otherwise affect the terms and conditions of this Agreement. K. Applicable Law. This agreement is made and entered into in the State of California and shall be governed, interpreted and enforced in accordance with the laws of the State of California. -10- 55575.18100I4I879930.1 L. Attorneys' Fees. The prevailing Party in any legal action, including binding arbitration, brought to enforce or interpret any provisions of this Agreement, shall be entitled to an award of reasonable attorneys' fees against the other party, which fees may be set in the same action or a separate action brought for that purpose. M. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the matters herein, and prior agreements, promises, statements or negotiations not expressly set forth herein are of no force or effect, with the exception of that certain Memorandum of Understanding by and between the City and the Foundation, as amended, and that certain document entitled "David Lee Gift to The Palm Springs Plaza Theatre Foundation Binding Term Sheet", dated April 7, 2022. N. Partial Invalidity. If any term or provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining terms herein shall be unaffected and remain in full force and effect. O. Incorporation of Exhibits. The Exhibits attached hereto are hereby expressly incorporated by reference by the Parties into this Agreement, as though fully set forth herein. P. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Foundation, and the operation of the Theatre hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of City and Foundation. If and when, from time to time, during the term of this Agreement, City and Foundation agree that such clarifications are necessary or appropriate, City and Foundation shall be authorized to effectuate such clarifications through Operating Memoranda approved in writing by the City Manager and Foundation, which, after execution, shall become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Foundation. No such Operating Memorandum shall be in conflict with this Agreement. The City Manager, in consultation with the City Attorney, shall make the determination on behalf of City whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section VIII:H above. The City Manager shall be authorized to execute any Operating Memoranda hereunder on behalf of City. Notwithstanding the foregoing, nothing contained in this paragraph shall prevent the City Manager from bringing an issue of clarification before the City Council for the City Council's determination. Q. Counterparts. This Agreement may be executed in one or more counterparts, including with electronic signatures, and each of such counterparts, for all purposes, shall be deemed to be an original, but all of such counterparts together shall constitute but one and the same instrument, binding upon the parties, notwithstanding that all of the parties may not have executed the same counterpart. -11- 55575. 18100\41879930.1 IN 1\ l fXhSS \1111iR1:O1 , this Agicement is executed by the fatties on the date(s) set t�n1h belom . PAUM SPRINGS PLAZATHEATRE FOI NDATICIN T.R. Roberts, Chief lacctdiNu4)17icrt Date: y} Rick Vila, Secretary Date: /'Q%a/%ds (CITY Oil PALM SPRINGS By: 69V660-v — d-11'- - -- - 41?r'Scott Stiles, City Manager Date: i-I -a-7-4 3 ATTEST: APPROVED BY CITY COUNCIL By: Brenda Pree, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER LLP By: C —^-=yam/ �� Jeffrey S-Ballingepeity Attorney -12- 55575.18t9fiAIb73939.1 IN WITNESS WHEREOF, this Agreement is executed by the Parties on the date(s) set forth below. PALM SPRINGS PLAZA THEATRE CITY OF PALM SPRINGS FOUNDATION By. _ \ By: t/llti� J.R. Roberts, Chief Execcu iv ffice bw Scott Stiles, City Manager Date: I �\ —I y " ` 1)Q Date: I;I - a-% - 93 La SIGNED IN COUNTERPART ATTEST: Rick Vila, Secretary Date: APPROV."D BY CITY COUNCIL 2�/ z3 -i?c*n / T qy� By: px 1.�� Brenda reef, City Clerk BEST BEST & KRIEGER LLP Jeffrey S Ballinge Ity Attorney -12- 55575.18100\4I879930.1 EXHIBIT A RESPONSIBILITY FOR MAINTENANCE AND REPAIRS SYSTEM/AREA CITY FOUNDATION RESPONSIBILITIES RESPONSIBILITIES ELECTRICAL/LIGHTING & POWER EMERGENCY POWER SYSTEM HEATING AND VENTILATION, PUMPS, BOILERS AND FILERS SYSTEM, AIR HANDLERS AND HEATING CONTROLS PLUMPING, SEWER, WATER PAINTING Wiring, conduit, breakers, light fixtures. Central Circuit Repair parts and/or system wiring/conduit, etc. Periodic operational check- out. All except filter/strainer changes and daily/weekly operational checks. Including ducts, air handlers, etc. Broken pipes, valves within system. Clean sewer outside of building. Plumbing fixtures excluding those listed under REP's responsibilities. Repair and preventive maintenance duties in the public restroom. All exterior, including tough up after vandalism. INDOORS/HARDWARE/LOCKS Repair and maintain all WINDOWS/FRONT DOORS GLASS/ALARM SYSTEM doors in public domain. Replace glass in doors. Replace/repair windows and glass in exterior Exhibit A 53575. 18100\41879930.1 Replace lamps, switch outlet plats, outlets and fixture lenses. All exterior lighting including lamps, fixed security & safety lights. None. Report problems to City staff. All -except broken pipes and valves within system and clearing sewer outside of building. Repair and maintain all plumbing in concession, green and dressing room areas. All interior walls. Report problems to City staff. Cleaning of glass in doors and windows. Replace glass if responsible for SYSTEM/AREA CITY FOUNDATION RESPONSIBILITIES RESPONSIBILITIES DOORS/GATES FIRE SUPPRESSION SYSTEM, INCLUDING ALARM FLOOR COVERING DISPLAYS ELEVATORS —PASSENGER TRASH COMPACTOR PEST CONTROL SEATING (Stage/Space) SOUND SYSTEM windows. Maintain alarm systems. Replace doors and gates. Replace/repair windows and glass in doors and gates. Maintain alarm systems in doors/gates. Maintain and repair fire suppression and alarm system throughout building. Replace worn carpeting. Quarterly professional cleaning. Replace damage and irreparable letters and sign structure. None All except routing inspection. Extermination for termites, bees, pests and other vermin in and around structure. breakage. Clean metal fixtures. Cleaning of doors and gates. Preventive maintenance. Report any problems to City staff. Professional cleaning as needed. Custodial car and repair/maintain flooring in non-public areas. Spot clean carpet as needed. Install and operate displays. Custodial care of displays. Report problems to City staff. Report problems to City staff. Report problems to City staff. Replace worn damaged or Repair, clean and provide irreparable seats. preventative maintenance. Replace worn, damages, and irreparable sound equipment. All repairs that must be performed out of house. (Except for damage Exhibit A Repair, clean and provide preventative maintenance. Ci. 3F7F3D:�PII:jL]t911 SYSTEWAREA CITY FOUNDATION STATE SETS (Lighting & Sound Grids, Stages, Curtains, Scrims, Catwalk and acoustics, Genie lift, etc.) OFFICE FURNITURE & EQUIPMENT THEATRE LIGHTING GENERAL HOUSEKEEPING DUTIES NON PUBLIC AREAS (Backstage production areas, dressing room, green room, storage rooms, sound & lighting control rooms, and concession, Foundation office areas.) caused by the negligence of the Foundation). Repair Genie Lift, if out of house repairs are needed. (Except for damage caused by the negligence of the Foundation). Replace worn and irreparable items. Replace wom, damages, and irreparable lighting equipment. All repair performed out of house. (Except for damage caused by Foundation's negligence). None All problems structural, mechanical or electrical, involving systems initially installed. Exhibit A All minor repairs, cleaning and provide preventative maintenance, except major repairs to Genie Lift. Minor in-house repair and cleaning. Preventative maintenance. Repair, clean and provide preventative maintenance. Clean, disinfect and keep in a sanitary manner all office, storage, working areas (front and stage), restrooms, and concession areas. Including those in the public domain Cleaning, minor repairs and preventative maintenance of all ceiling tiles, walls, flooring, mirrors, wiring and other equipment and fixtures initially installed. Clean, disinfect and keep in a sanitary manner 55575. 18100A 1879930.1 EXHIBIT B REQUIRED INSURANCE 1. Insurance. a. Insurance To Be Maintained By Foundation. Foundation shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the Term 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 Foundation's performance of the Services and related work under this Agreement, including Foundation's agents, representatives, or employees. In the event the City Manager determines that the work or Services creates an increased or decreased risk of loss to the City, Foundation agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager. Foundation shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. If any insurance is written on a claims -made basis, such insurance shall be maintained for a minimum of three (3) years subsequent to the expiration of this Agreement, or a three (3) year extended reporting period endorsement shall be purchased. The minimum amount of insurance required shall be as follows: (1) Workers' Compensation. To the extent required by California law, Foundation 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, in compliance with all other statutory requirements, as required by the State of California. Foundation agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and shall endeavor to use commercially reasonable efforts to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. (2) Crime Fidelity Coverage. At least $100,000.00 per occurrence of coverage for (i) Foundation employee dishonesty; (ii) forgery or alteration; (iii) theft, disappearance and destruction inside and outside the Theatre; and (iv) robbery and safe burglary inside and outside the Theatre. (3) Commercial General Liability. Foundation shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least four million dollars ($4,000,000.00) for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. Any combination Exhibit B 55575.18100W 1879930.1 of primary and umbrella liability policies shall satisfy this requirement. (4) Employer's Liability Coverage. Foundation shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of employer's 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. b. 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, such approval not to be unreasonably withheld. Foundation guarantees payment of all deductibles and self -insured retentions. C. Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Foundation under this Agreement: (1) For any claims related to this Agreement, except for Crime and Workers' Compensation/Employer's Liability, Foundation'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 Foundation's insurance and shall not contribute with it. (2) Commercial General Liability insurance coverage and limits provided by Foundation 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. (3) Foundation agrees to require its commercial auto liability, commercial general liability and workers' compensation insurers to provide a notice of cancellation to the City Manager. Regarding all other insurance policies, Foundation agrees to provide the City Manager with thirty (30) days' notice of cancellation, except for ten (10) days' notice of cancellation for non-payment of premium. It is Foundation's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. (4) Foundation agrees to endeavor to ensure, if commercially reasonable, that subcontractors, and any other parties involved with the scope of Management Services and related Work provided pursuant to this Agreement, who are brought onto or involved by Foundation, provide the same minimum insurance coverage Exhibit B 55575. 1810041879930.1 required of Foundation. Foundation 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. Foundation agrees that upon request, all agreements with subcontractors and others engaged in the performance of services hereunder this Agreement will be submitted to the City for review. (5) Foundation acknowledges and agrees that any actual or alleged failure on the part of the City to inform Foundation 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) Foundation 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 prior to the policy expiration and/or renewal date. (7) 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. (8) 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. (9) Foundation agrees to provide immediate notice to City of any claim or loss against Foundation arising out of the Services and related work performed under this Agreement and for any other claim or loss that 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. (10) Foundation agrees that the provisions of this Exhibit shall not be construed as limiting in any way the extent to which the Foundation may be held responsible for the payment of damages resulting from Exhibit B 55575. 1810041879930.1 Foundation's activities or the activities of any person or person for which Foundation is otherwise responsible. d. 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 A-, VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. e. Verification of Coverage. Foundation 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 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 Management Services commence. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: (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) for General and Auto Liability policies. (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 workperformed with the City" may be included in this statement) for General and Auto Liability policies. (3) "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 calendar days written notice to the Certificate Holder named." (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 in writing by the City before Management Services commence. 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 Services shall not waive Foundation's obligation to provide them. Exhibit B cffir�.uaonmr.�ca�nai Exhibit B SE373.18100\41879930.1 ,�►coR& CERTIFICATE OF LIABILITY INSURANCE llb� DATE(MMIDOYYW) 1/23/2024 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(les) 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). PRODUCER Keenan & Associates 2355 Crenshaw Blvd., Suite 200 Torrance, CA 90501 CONTACT NAME: PHONE FAX 310-212-0363 AIC No: 3102t2-0363 ADDE-MAIL RESS: INSURER(S) AFFORDING COVERAGE NAN:• INSURERA: United States Liability Insurance Co 25895 www.keenan.com 0451271 INSURED Palm Springs Plaza Theatre Foundation 1775 E. Plam Canyon Dr. Suite 110-1028 INSURER B : Travelers Casualty and Surety Company 19038 NauRERc: INSURERD: INSURER E: Palm Springs CA 92264 INSURER F : CnVFRAaFR CERTIFICATE NUMBER: 7A31g11n REVISION NUMBER: 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. WSR TYPE OF INSURANCE ADOL man SUER POLICY NUMBER MMDeWYF POLICY p EXP LIMITS A �/ COMMERCIALGENERALLIASILn'Y ✓ NBP1563433A 3/19/2023 3/1912024 EACH OCCURRENCE $1000000 DAMAGE PREMISES Ea oc ;a $100 000 CLAIMS -MADE �✓ OCCUR MED EXP (Any oneperson) $ 5 000 PERSONAL &ADV INJURY s2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 PRODUCTS-COMP/OP AGO $2000000 ✓ POLICY ❑JET LOG $ OTHER: A AUTOMOBILE LIABILITY NBP1563433A 3/19/2023 3/19/2024 EaMaBI�NIED' SINGLE LIMIT $1 000 000 BODILY INJURY (Par person) $ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NON -OWNED AUTOS ONLY P AUTOS ONLY BODILY INJURY (Per accident) $ PROPERTYDAMAGE Per accident $ S A UMBRELLALIAS OCCUR CUP1571907 3/19/2023 3/19/2024 EACH OCCURRENCE $50D0000 AGGREGATE $5 000 000 EXCESS LIAS CLAIMS -MADE DEC) I I RETENTION $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANYPROPRIETOR/PARTNER/EXECUTIVE IPER OTH- STATUTE ER E.L. EACH ACCIDENT $ OFFICER/MEMBEREXCLUDEDI ❑ (Mandatory In NH) NIA E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ If yes describe under DESCRIPTION OF OPERATIONS below B Crime 107977068 1/15/2024 1/15/2025 Limit: 5,000,000 Deductible: 25,000 DESCRIPTION OF OPERATIONS 1 LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Palm Springs is listed as an Additional Insured With respect to the General Liability per the attached endorsement as required by written contract. Primary & Non-contributory wording also applies to the General Liability and Auto Liability policies. 32f Palm 00 E. TahquittznCanyon Way Palm Springs CA 92262 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AU LNOR'QED REPRESENTATNE ACORD 25 (2016103) 5 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 18319110 I PAIMSFAI I Neater Certificate I Lisa vaidea 1 1/23/2024 e:5S:3e AN (PST) I Page T or 3 UNITED STATES LIABILITY INSURANCE GROUP WAYNE, PENNSYLVANIA This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM BLANKET ADDITIONAL INSURED ENDORSEMENT Section II — LIABILITY, C., Who Is An Insured is amended to include as an insured any person, entity or organization that is: 1. A franchisor under a franchise agreement with the Named Insured as franchisee relating to "your work'; or 2. A licensor under a license agreement with the Named Insured as licensee relating to "your work"; or 3. A co-owner with the Named Insured in premises used for "your work"; or 4. A majority owner with a controlling interest in the Named Insured but only with respect to liability arising out of such owner's (i) financial or operational control of the Named Insured; or (ii) ownership, maintenance or use of premises leased or occupied by the Named Insured for purposes of "your work"; or 5. A mortgagee, assignee or receiver of the Named Insured relating to "your work"; or 6. A lessor, or an agent of a lessor, under a lease agreement with the Named Insured as lessee relating to "your work"; or 7. A grantor of a permit to the Named Insured as permitee relating to "your work". However, if the grantor of a permit is a federal, state or local government or political subdivision, there is coverage under this endorsement only for liability arising from: a. The existence, maintenance, repair, construction, erection or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoist away openings, sidewalk vaults, street banners or decorations and similar exposures; or b. The construction, erection or removal of elevators; or c. The ownership, maintenance or use of any elevators covered by this insurance; or 8. A lessor of equipment leased to the Named Insured relating to "your work"; or 9. A contributor, benefactor, or supporter who provides financial assistance to the Named Insured in connection with "your work". but only to the extent the Named Insured is required to add such person, entity or organization as an additional insured to this policy under a written contract, written permit or written agreement relating to "your work". Such person, entity or organization is an insured only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" that is caused, in whole or in part by your acts or omissions or the acts or omissions of those acting on your behalf in connection with "your work" while such written contract, written permit or written BP 145 NPP (06-10) Page I of 2 78319120 1 PA MSPRI [ MeeCez Certificate I flea Valdez 1 1/23/2024 8:55:38 M1 (PST) I Page 2 of 3 agreement is in effect. EXCLUSIONS There is no coverage under this endorsement for loss or expense, including but not limited to the cost of defense for "bodily injury", "property damage" or "personal and advertising jury": 1. That occurs after all of "your work", including materials, parts or equipment furnished in connection with "your work" and performed under a written contract, written permit or written agreement has ended; or When that portion of "your work" out of which the "bodily injury", "property damage" or "personal and advertising injury" arises and performed under a written contract, written permit or written agreement has been put to its intended use by any person(s) or organization(s); whichever occurs first. 2. Arising directly or indirectly from construction or demolition operations of any kind performed by you. 3. Caused or alleged to be caused by the sole negligence of an additional insured under this endorsement. 4. Arising out of "your work" performed for a federal, state or local government or political subdivision under a written permit; or 5. Included within the "products -completed operations hazard". CONDITIONS Coverage provided by this endorsement will be excess over any insurance available to any additional insured under this endorsement unless a written contract, written permit or written agreement specifically requires that coverage under this endorsement is primary. All other terms and conditions of this policy remain unchanged. This endorsement is a part of your policy and takes effect on the effective date of your policy unless another effective date is shown. BP 145 NPP (06-10) 78319110 1 PA SPRI I Master Certificate I Lisa Valdez 11/23/2024 8:55:38 AM (PST) I Page 3 0£ 3 Page 2 of 2 Certificale of Exemplion from Workers' Compensation Insurance 10: Cit% of Pam Springs ATYN: Cit% Clerk and Risk Manager SUBJECT: Sole Proprictor/Partnership/Closely Held Corporation/Non-Profit Corporationtimited Liability Company with No Employees Please let this memorandum notify the City of Palm Springs that I am a: U Sole proprietor L_j Partnership L_j Closely held corporation 'Non-profit corporation (_j Limited liability company and do not have any employees whose employment requires me to carry workers' compensation insurance. Therefore, I do not carry workers' compensation insurance coverage. I further warrant that I understand the requirements of Section 3700, et seq., of the California Labor Code with respect to providing workers' compensation coverage for any employees. I agree to comply with the code requirements and all other applicable laws and regulations regarding workers' compensation, payroll taxes, FICA and tax withholding and similar employment issues. I further agree to hold the City of Palm Springs harmless from loss or liability which may arise from the failure to comply with any such laws or regulations. _(bn/raclor s Name j Risk Management Approval: Contractor's Signature _Conlraclor.v Name Printed Name of Contractor 55575 (NNX)141450473. 1 J V I J Deans & Homer ESTABLISHED IN 186e PO Box 2839 San Francisco, CA 94126-2839 The City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262-6959 Ili Policy: SL 2870420 Insured: PALM SPRINGS LA PO Box 2839 San Francisco California 94126-2839 Tel (415) 421-8332 Fax (415) 989-7801 w w.deanshomeccom CA Lie* 0300517 THIS IS NOT A BILL. IF ADDITIONAL PREMIUM IS DUE, A BILLING STATEMENT WILL FOLLOW UNDER SEPARATE COVER Additional Insured Copy RECEIVED AUG 01 2022 76 Office of the City Clerk CONTRACT ABSTRACT r ungmar. Agreement, uui, Starr rteport Contract Company Name: Plaza Theatre Foundation Company Contact: J.R. Roberts, President Summary of Services: Management, Operation and Entertainment Production Services for the Historic Plaza Theatre Contract Total: Repair to the Building per Exhibit A Funding Source: 5206570-40105 Contract Term: 10 Year January 1, 2024 through December 31, 2033 Contract Administration Lead Department: City Manager Contract Administrator: Teresa Gal lavan/Tabitha Richards Contract Approval City Council Approval: July 24, 2023, Item 1.T. Agreement Number: A9467 Contract Compliance Exhibits: Attached Signatures: Attached Insurance: Attached Bonds: N/A Prepared by: BBK This original agreement was previously executed on December 27, 2023. See attached agreement. Submitted on: 3/04/2024 By: Tabitha Richards PRE -OPENING SERVICES AND MANAGEMENT AGREEMENT between The Plaza Theatre Foundation and GLOBAL SPECTRUM, L.P. d/b/a OVG360 Dated: February 1, 2023 Cover Page Page 1 of 6S PRE -OPENING SERVICES AND MANAGEMENT AGREEMENT Effective Date: February 1, 2023 This Pre -Opening Services and Management Agreement is made effective as of the Effective Date by and between The Plaza Theatre Foundation, a California non-profit public benefit corporation having IRC 501(c)(3) status with an address at 1775 E Palm Canyon Drive Suite 110-1029, Palm Springs, CA 92264 Attn: YA0,01 Aaw3,LTuN ("Foundation") and Global Spectrum, L.P., a Delaware limited partnership d/b/a OVG360 ("OVG"). Foundation and OVG are sometimes referred to herein as the "Parties". RECITALS WHEREAS, the Foundation has entered into an Agreement For Management, Operation And Entertainment Production Services For The Historic Plaza Theatre, dated July 24, 2023 ("City Agreement"), a copy of which is attached hereto as Exhibit "A" with the City of Palm Springs ("City"), which owns the theatre called The Plaza Theatre, located at 128 S Palm Canyon Dr, Palm Springs, CA 92262 (the "Facility"), which is anticipated to re -open on or around October 1, 2025 ("Opening Date"); WHEREAS, The City and the Foundation are separate and independent entitles and neither one has the authority to legally bind or act on behalf of the other; WHEREAS, the Foundation and City desire to engage OVG to provide certain pre -opening consulting services, and following the Opening Date to manage and operate the Facility, as agent on behalf and for the benefit of Foundation, and OVG desires to accept such engagement, pursuant to the terms and conditions contained herein; and NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows: ARTICLE 1 DEFINITIONS Section 1.1. Definitions. For purposes of this Agreement, the following terms have the meanings referred to in this Section: Advanced Funds: shall have the meaning given to such term in Section 10.2 of this Agreement. Affiliate: A person or company that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified person or company. Page 2 of 65 Agreement: This Pre -Opening Services and Management Agreement, together with all schedules and exhibits attached hereto, each of which are incorporated herein as an integral part of this Agreement. Capital Expenditures: All expenditures for building additions, alterations, repairs or improvements and for purchases of additional or replacement furniture, machinery, or equipment, where the cost of such expenditure is greater than $5,000 and the depreciable life of the applicable item is, according to generally accepted accounting principles, is in excess of one year. Commercial Rights: Naming rights, sub -naming rights, entitlement rights, pouring rights, branding rights, advertising, sponsorships, premium seating (including club seats, loge boxes, and VIP spaces, as applicable) and similar commercial rights at or with respect to the Facility, provided that the naming rights for the Facility itself shall be retained by Foundation. Commercial Rights Fee: shall have the meaning given to such term in Section 3.3 of this Agreement. Commercial Rights Revenue: shall mean all revenue (including Operating Revenue and Non -Operating Revenue) derived from the sale of Commercial Rights. Effective Date: shall have the meaning given to such term in the opening paragraph of this Agreement. Emergency Repair: The repair of a condition which, if not performed immediately, creates an imminent danger to persons or property and/or an unsafe condition at the Facility threatening persons or property. Event Account: A separate interest -bearing account in the name of Foundation and under Foundations' Foundation Federal ID number in a local qualified public depository, to be designated by Foundation, where advance ticket sale revenue and rental deposits are deposited by OVG. Event of Force Majeure: An act of God, fire, earthquake, hurricane, flood, riot, civil commotion, terrorist act, terrorist threat, storm, washout, wind, lightning, landslide, explosion, accident to machinery or equipment, pandemic or epidemic, any law, ordinance, rule, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, war or hostilities, a labor dispute which results in a strike or work stoppage affecting the Facility or services described in this Agreement, or any other cause or occurrence outside the reasonable control of the party claiming an inability to perform and which by the exercise of due diligence by the party claiming the Event of Force Majeure could not be reasonably prevented or overcome. Page 3 of 66 Existing Contracts: Service Contracts, Revenue Generating Contracts, and other agreements relating to the day-to-day operation of the Facility existing as of the Opening Date, as set forth on Exhibit B, attached hereto, which shall be updated by Foundation prior to the Opening Date. Facility: shall have the meaning given to such term in the Recitals to this Agreement, and shall be deemed to include the entire theatre complex, including but not limited to the theatre, dressing rooms, green rooms, meeting rooms, box office, common areas, lobby areas, executive and other offices (including those offsite), storage and utility facilities, as well as the entrances, rights of way, easements, ground, sidewalks and parking areas immediately surrounding the Facility and adjacent thereto, as identified on Schedule 1.1, attached hereto. FF&E: Furniture, fixtures, and equipment to be procured for use at the Facility. Food and Beverage Services: shall have the meaning given to such term in Section 2.1(b) of this Agreement. Foundation: shall have the meaning given to such term in the opening paragraph of this Agreement. General Manager: The employee of OVG acting as the full-time on -site general manager of the Facility. Laws: Applicable federal, state, local and municipal laws, statutes, rules, regulations and ordinances. Management -Level Employees: The General Manager, Assistant General Manager, Business Manager (or employees with different titles performing similar functions), and any department head employed by OVG to perform services at the Facility (including, if applicable, employees performing the function of the Director of Operations, Director of Sales and Marketing, Director of Security, Finance Director, Event Manager, Director of Food and Beverage, Technical Director, and Fundraising Manager). Marketing Plan: A plan for the advertising and promotion of the Facility. Material Contract: shall mean the following contracts: (i) any Commercial Rights contract which contemplate naming rights within the Facility which are subject to City approval, which would exclude any event -specific branding or sponsorship, (ii) any exclusive vendor contract with a term greater than 2 years in length, and (iii) any vendor or event license form contract template developed for the Facility. Monthly Accounting Period: Each approximately 4 or 5 week period during each Operating Year, ending on the last Wednesday of each month, except for December which shall end on December 31. Page 4 of 65 Net Operating Income/Loss: - The amount by which Revenue exceeds Operating Expenses (Net Operating Income), or by which Operating Expenses exceeds Operating Revenue (Net Operating Loss), for the relevant time period. Operating Account: A separate interest -bearing account in the name of Foundation and under Foundation's Foundations Federal ID number in a local qualified public depository, to be designated by Foundation, where Revenue is deposited and from which Operating Expenses are paid. Operating Budget: A line -item budget for the Facility that includes a projection of Revenues and Operating Expenses, presented on a monthly and annual basis. Operating Expenses: All expenses incurred by OVG in connection with its operation, management, staffing, promotion and maintenance of the Facility, including but not limited to the following: (i) employee payroll, benefits, relocation costs, severance costs, bonus and related costs, (ii) cost of operating supplies, including general office supplies, (iii) advertising, marketing, group sales, and public relations costs, (iv) cleaning expenses, (v) data processing costs, (vi) dues, subscriptions and membership costs, (vii) printing and stationary costs, (viii) postage and freight costs, (ix) equipment rental costs, (x) repairs, maintenance, and equipment servicing, (xi) security expenses, (xii) telephone and communication charges, (xiii) travel and entertainment expenses of OVG employees, (xiv) cost of employee uniforms and identification, (xv) exterminator, snow and trash removal costs (xvi) computer, software, hardware and training costs, (xvii) parking expenses, (xviii) utility expenses, (xix) office expenses, (xx) audit and accounting fees, (xxi) legal fees and costs, (xxii) all bond and insurance costs (including but not limited to personal property, liability, and worker's compensation insurance, as well as the other insurance coverages required hereunder), including, without limitation, the cost of any coverage deductibles, coinsurance penalties, or self - insured retention under insurance policies, (xxiii) commissions and all other fees payable to third parties (e.g. commissions relating to food, beverage, and merchandise concessions services and commercial rights sales), (xxiv) cost of complying with any Laws, (xxv) costs incurred by OVG to settle or defend any claims asserted against OVG arising out of its operations at the Facility on behalf of Foundation not due to the adjudicated negligence or willful misconduct of OVG; (xxvi) costs incurred under Service Contracts and other agreements relating to Facility operations, (xxvii) Taxes, (xxviii) cost to OVG for managing and/or performing the Food and Beverage Services, and (xxix) cost incurred in connection with the marketing and sale of Commercial Rights. The term "Operating Expenses' does not include debt service on the Facility, Capital Expenditures, Pre -Opening Expenses, property taxes, property insurance on the Facility itself or the contents within the Facility operated by Foundation, all of which costs shall be borne by Foundation and, if incurred by OVG, shall be promptly reimbursed to OVG by Foundation. Operating Year: Each 12-month period during the Term, commencing on July 1 and continuing through June 30 of the same year; provided that for purposes of this Agreement there shall be a "Stub Operating Year" defined as the Opening Date through June 30, 2025. Page 5 of 65 Opening Date: shall have the meaning given such term in the Recitals to this Agreement, provided that the Opening Date may be extended by events outside the reasonable control of Foundation. Operations Manual: Document to be developed by OVG which contains detailed terms regarding the management and operation of the Facility, including detailed policies and procedures to be implemented in operating the Facility, as agreed upon by both Foundation and the OVG. Operations Manual terms that conflict with the terms of this Agreement shall be deemed invalid OVG: shall have the meaning given to such term in the opening paragraph to this Agreement. Foundation: shall have the meaning given to such term in the opening Recital to this Agreement. Pre -Opening Consulting Fee: shall have the meaning given to such term in Section 3.1 of this Agreement. Pre -Opening Expense Account: A separate interest -bearing account in the name of the Foundation and under the Foundation Federal ID number in a local qualified public depository, to be designated by the Foundation, into the Foundation's deposits in advance funds for the payment of Pre -Opening Expenses, and from which OVG may draw to pay such Pre -Opening Expenses. Pre -Opening Expense Budget: The budget for the Pre -Opening Period to be prepared by OVG and submitted to Foundation, which shall include, without limitation, all Pre -Opening Expenses and the Pre -Opening Consulting Fee. Pre -Opening Expenses: The actual labor expense (including without limitation salary, benefits, 401(k) employer matching contributions, relocation, bonus and related costs), insurance costs, service contracts and other operating costs and expenses of OVG, as well as all out-of-pocket travel costs (airfare, ground transportation, meals and lodging) of OVG's corporate personnel, in connection with its obligations hereunder during the Pre -Opening Period. Pre -Opening Period: Period of time beginning on the Effective Date and ending on the Opening Date. Qualitative Incentive Fee: shall have the meaning given to such term in Section 3.6 of this Agreement. Revenue: All revenues generated by OVG's operation of the Facility and actually received including, but not limited to, event ticket proceeds income, rental and license fee income, merchandise income, gross food and beverage income, gross income from any sale of Commercial Rights, gross service income, equipment rental fees, box office income, and Page 6 of 65 miscellaneous operating income, but shall not include event ticket proceeds held by OVG in trust for a third party and paid to such third party. Revenue Benchmark: the Revenue Benchmark determined by the parties in good faith based on Revenue projections each Operating Year, with the Revenue benchmark applicable to the first Operating Year to be determined by OVG and Foundation at least 3 months prior to the Opening Date, and thereafter to be developed by OVG and Foundation in good faith and included in each Operating Budget. If OVG and Foundation cannot agree to a Revenue Benchmark prior to the first Operating Year, after diligent and documented evidence of such good faith negotiations, either party may terminate this Agreement, subject to Foundation's payment of the any outstanding Pre -Opening Expenses and any additional documented and reasonable costs borne by OVG in furtherance of its expectation to begin its provision of services hereunder. After the first Operating Year, if OVG and Foundation cannot agree on the Revenue Benchmark, prior to the Operating Year, the Revenue Benchmark for the prior Operating Year shall be deemed to be the Revenue Benchmark for the next Operating Year. Revenue Generating Contracts: Vendor, concessions and merchandising agreements, user/rental agreements, booking commitments, licenses, and all other contracts or agreements generating revenue for the Facility and entered into in the ordinary course of operating the Facility; provided that any Material Contract shall be subject to the prior approval of Foundation. Revenue Incentive Fee: shall have the meaning given to such term in Section 3.6 of this Agreement. Service Contracts: Agreements for services to be provided in connection with the operation of the Facility, including without limitation agreements for ticketing, web development and maintenance, computer support services, FF&E purchasing services, engineering services, general maintenance, , telephone, staffing personnel including guards, ushers and ticket -takers, extermination, elevators, stage equipment, fire control panel and other safety equipment, and other services which are deemed by OVG to be either necessary or useful in operating the Facility. Taxes: Any and all governmental assessments, franchise fees, excises, license and permit fees, levies, charges and taxes, of every kind and nature whatsoever, which at any time during the Term may be assessed, levied, or imposed on, or become due and payable out of or in respect of (1) activities conducted on behalf of Foundation at the Facility, including without limitation the sale of concessions, the sale of tickets, and the performance of events (such as any applicable sales and/or admissions taxes, use taxes, excise taxes, occupancy taxes, employment taxes, and withholding taxes), or (ii) the foregoing imposed on any payments received from any holders of a leasehold interest or license in or to the Facility, from any guests, or from any others using or occupying all or any part of the Facility. Term: shall have the meaning given to such term in Section 4.1 of this Agreement. Page 7 of 65 ARTICLE 2 SCOPE OF SERVICES Section 2.1 Engagement. (a) Foundation hereby engages OVG during the Pre -Opening Period to perform the pre -opening services described in Schedule 2.1(a), attached hereto. (b) Foundation hereby engages OVG following the Opening Date to act as the sole and exclusive manager and operator of the Facility, subject to and as more fully described in this Agreement, and, in connection therewith, to perform the services described in Schedule 2.1 (b), attached hereto. (c) Foundation hereby engages OVG (or its designee) following the Opening Date to act as the sole and exclusive food and beverage provider of the Facility, subject to and as more fully described in this Agreement, and in connection therewith, to perform the services described in Schedule 2.1 (c) (collectively, the "Food and Beverage Services"), attached hereto; provided the parties agree that in certain limited instances a third -parry caterer may be permitted to provide Food and Beverage Services at the Facility, with terms of such engagement to be mutually agreed by the parties. Foundation specifically agrees that pursuant to Section 5.5, OVG shall be permitted to assign, subcontract or otherwise sublicense all or any portion of their rights and obligations in respect of the provision of such Food and Beverage Services, including, without limitation, to an Affiliate subject to the written approval of Foundation. (d) OVG hereby accepts such engagement, and shall perform the services described herein in accordance with the industry standard for such services, subject to the limitations expressly set forth in this Agreement and in the Operations Manual. Section 2.2 Commercial Rights Sales. In addition to OVG's other rights and duties hereunder, OVG shall act as the sole and exclusive third party representative for marketing of the Commercial Rights. OVG will keep Foundation apprised of its sales prospects and the status of any potential sales of Commercial Rights, which shall be subject to Foundation's prior written approval in each instance. Foundation hereby acknowledges and agrees that OVG is not guaranteeing any level of purchase of, or the receipt of payment for, any Commercial Rights marketed by OVG pursuant to this Agreement. Section 2.3 Limitations on OVG's Duties. OVG's obligations under this Agreement are contingent upon and subject to Foundation making available, in a timely fashion, the funds budgeted for and/or reasonably required by OVG to carry out such obligations during the Term as provided in this Agreement. OVG shall not be considered to be in breach or default of this Agreement and shall have no liability to Foundation or any other party, in the event OVG does not perform any of its obligations hereunder due to failure by Foundation to timely provide such funds to OVG. Page 8 of 65 ARTICLE 3 COMPENSATION Section 3.1 Pre -Opening Fee. Foundation shall pay OVG a monthly fee of US $10,000 (the "Pre -Opening Fee") per month during the Pre -Opening Period (prorated for any partial months). The Pre -Opening Fee shall be included as a line item in the Pre -Opening Expenses Budget, and shall be due on the first day of each month during the Pre -Opening Period. Section 3.2 Base Management Fee. OVG has agreed to waive any base management fee in connection with OVG's performance of its management services following the Pre -Opening Period. In addition, during the Pre -Opening Period, no base management fee shall be due in connection with the Pre -Opening services, including management, which shall be included with the Pre -Opening Fee. Section 3.3 Commercial Rights Fee. In consideration for OVG's marketing of the Commercial Rights as described in Section 2.2, OVG shall receive 20% of all Commercial Rights Revenue (including cash and trade (at fair market value), with such trade valued at its retail price in an arms -length transaction) actually received from the sale of Commercial Rights (the "Commercial Rights Fee"). The Commercial Rights Fee shall be paid to OVG for all years of each Commercial Rights agreement secured by OVG, including any years that extend beyond the end of the Term of this Agreement. The Commercial Rights Fee due to OVG following the conclusion of the Term is referred to herein as the 'Trailing Commercial Rights Commissions". The Commercial Rights Fee shall be paid to OVG on a bi-annual basis, on or about the last day of June and December each calendar year, and OVG shall be entitled to pay itself such amount from the Operating Account upon providing documentation of such Commercial Rights Fee to Foundation. The parties shall also hold a settlement at the conclusion of the Term, at which time Foundation shall pay to OVG any portion of the Commercial Rights Fee due to OVG but not yet paid to OVG as of such date (other than Trailing Commercial Rights Commissions). Following the conclusion of the Term, Trailing Commercial Rights Commissions shall be paid to OVG by Foundation within 30 days of receipt by Foundation of the corresponding Commercial Rights Revenue arising from any Commercial Rights agreements which were secured by OVG. In connection with the Commercial Rights Fee and Trailing Commercial Rights Commissions, Foundation agrees (i) to maintain books and records in accordance with generally accepted accounting practices or other commercially accepted accounting practices, and (ii) to permit OVG to audit and inspect such books and records during normal business hours and on reasonable advance notice, to confirm amounts due hereunder, including, following the conclusion of the Term (as it relates to Trailing Commercial Rights Commissions). To the extent any such audit reveals an underpayment Foundation shall promptly pay OVG the amount of the underpayment, and if such underpayment to OVG is greater than five percent (5%) of amounts owed to OVG, Foundation shall reimburse OVG for the reasonable costs of such audit. The terms in this Section 3.3 shall survive termination or expiration of this Agreement. Page 9 of 65 Section 3.5 Food and Beverage Fee. In consideration for OVG's provision of the Food and Beverage Services, OVG shall be entitled to receive a "Food and Beverage Fee" equal to ten percent (1016) of all Food and Beverage Revenue. Section 3.6 Incentive Fees. (a) Revenue Incentive Fee. Foreach Operating Year (includingthe Stub Operating Year), Foundation shall pay OVG as follows: twenty percent (201/6) of all Revenue in excess of the Revenue Benchmark (the "Revenue Incentive Fee"). OVG shall use commercially reasonable efforts to source and book a calendar of events each Operating Year that will maximize Revenue at the Facility and shall work in good faith with Foundation in developing a calendar of such events. (b) Qualitative Incentive Fee. In addition to the Revenue Incentive Fee, OVG shall be eligible to earn up to US $50,000 each Operating Year, as an additional qualitative incentive fee (the "Qualitative Incentive Fee") as calculated below, subject to payment at the Foundation's reasonable good faith discretion based on its review of the following qualitative factors in regards to OVG's performance at the Facility during such Operating Year. 1. Customer Service Scores (5 Points) 2. Number of Events (5 Points) 3. Fundraising Success (5 Points) 4. Board Relations (5 Points) 5. Community Relations (5 Points) Each of the above factors shall be evaluated by the Foundation, and OVG shall be scored on each factor using a rating scale of 0 (lowest score) to 5 (highest score). The Qualitative Incentive Fee shall be (a) $50,000, multiplied by (b) the total number of points scored by OVG (which must be between 0 and 25), divided by 25. By way of example only: (a) if OVG's total score is 20, OVG's earned Qualitative Incentive Fee would be computed as [20/251 x $50,000 equaling $40,000.00; (b) if OVG's total score is 25, OVG's earned Qualitative Incentive Fee would be $50,000 (computed as [25/25] x $50,000); and so on. Foundation shall deliver to OVG within 30 days conclusion of each Operating Year its determination in respect of the Qualitative Incentive Fee, including applicable scores, and reasonable justification thereof. For avoidance of doubt, OVG shall be eligible to earn a prorated portion of the Qualitative Incentive Fee during the Stub Operating Year (with such maximum Stub Operating Year Qualitative Incentive Fee calculated as $50,000 divided by 365 multiplied by the number of days In the Stub Operating Year, and thereafter replacing the $50,000 in the foregoing calculation with such number as it relates to the Stub Operating Year Qualitative Incentive Fee only). (c) The Revenue Incentive Fee and Qualitative Incentive Fee once determined by Foundation shall be payable within 60 days following conclusion of each Operating Year and may be paid by OVG out of the Operating Account, or if due in connection with the final Operating Year, payable as directed by invoice. Page 10 of 65 Section 3.7 Monthly Payment Terms. On or about the 2011 day following the end of each Monthly Accounting Period, OVG shall remit to Foundation Revenue remaining following deduction by OVG of Operating Expenses, the Food and Beverage Fee, any Advanced Funds, and any other amounts due to OVG hereunder) from such Monthly Accounting Period. Section 3.8 Late Payments. OVG shall have the right to assess interest on any payments of the fees described in this Section that are not made when due as provided in this Agreement or within thirty (30) days of receipt of invoice where not otherwise specified. Such interest shall accrue at the rate of 10% per annum. ARTICLE 4 TERM; TERMINATION Section 4.1 Term. The initial term of this Agreement shall begin on the Effective Date, and, unless sooner terminated pursuant to the provisions of Section 4.2 below, shall conclude June 30, 2034 (the "Initial Term"). Notwithstanding the foregoing, this Agreement shall automatically renew for an additional 10-year period (the "Renewal Term"), concluding June 30, 2044, unless either party provides written notice of its intent not to renew this Agreement at least 180 days prior to the conclusion of the Initial Term. The Initial Term and Renewal Term (as applicable) shall be referred to herein as the "Term". Section 4.2 Termination. This Agreement may be terminated: (a) by either party upon 30 days written notice specifying the default, if the other party fails to perform or comply with any of the material terms, covenants, agreements or conditions hereof, and such failure is not cured during such 30-day notification period, provided, however, if such failure cannot reasonably be cured within such 30-day period, then a longer period of time shall be afforded to cure such breach, up to a total of 90 days, provided that the party in default is diligently seeking a cure and the non -defaulting party is not irreparably harmed by the extension of the cure period; or (b) by either party immediately by written notice upon the other party being judged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of the other party shall be appointed and shall not be discharged within 120 days after appointment, or if either party shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition in bankruptcy or insolvency, or shall apply for bankruptcy under the bankruptcy or insolvency Laws now in force or hereinafter enacted, Federal, State or otherwise, or if such petition shall be filed against either party and shall not be dismissed within 120 days after such filing; or (c) by Foundation, upon sixty (60) days prior written notice if the City Agreement is terminated for any reason. Section 4.3 Effect of Termination. Upon expiration or termination of this Agreement, subsections (a),(b), (c), (d) and (e) below shall apply. Notwithstanding the forgoing, if this Page 11 of 65 Agreement is terminated by Foundation due to a material uncured default of OVG subsection (c), shall no longer be applicable. (a) OVG shall promptly discontinue the performance of all services hereunder, and make available to Foundation all data, electronic files, documents, procedures, reports, estimates, summaries, and other such information and materials with respect to the Facility as may have been accumulated by OVG in performing its obligations hereunder, provided that (i) OVG shall own and may retain all employment files/records relating to employees of OVG during the Term, and (ii) OVG may retain copies of all materials pertinent to its operation of the Facility during the Term, such as materials documenting its performance and those relating to claims or potential claims that have been or may be asserted related to OVG's operation of the Facility, including contracts and event incident reports. (b) Foundation shall promptly pay OVG (i) all fees due OVG up to the date of termination or expiration, and (ii) all Operating Expenses incurred by OVG through the end of the Term that have not previously been paid by Foundation or reimbursed to OVG, including the cost of accrued but unused vacation time to the extent due under OVG's policies to any employees whose employment is ceasing with OVG as a result of expiration or termination of this Agreement. (c) Foundation shall reimburse OVG for any actual ordinary and necessary expenses incurred by OVG in withdrawing from the provision of services hereunder following such termination that cannot be avoided by OVG using reasonably diligent efforts. Such ordinary and necessary expenses shall include costs associated with (i) to the extent any Management -Level Employee's employment with OVG will cease as a result of the termination or expiration of this Agreement, Foundation shall reimburse OVG for any severance paid to such employees, not to exceed 6 months' salary for each Management -Level Employee, (ii) reasonable household relocation expenses for OVG's Management -Level Employees, to the extent any such individuals had previously relocated to the Facility (or its surrounding areas) in connection with this Agreement and choose to leave the area within 6 months of the effective date of termination, and (iii) other reasonable costs actually incurred by OVG in withdrawing from the provision of services hereunder, such as those incurred in connection with the termination and/or assignment of Service Contracts, Revenue Generating Contracts, or other contracts or leases entered into by OVG pursuant to this Agreement. Foundation's payment of such expenses will occur only after OVG has provided reasonable evidence of the incurrence of such expenses. (d) Without any further action on part of OVG or Foundation, Foundation shall, or shall cause the successor Facility manager to, assume all obligations arising after the date of such termination or expiration, under any Service Contracts, Revenue Generating Contracts, booking commitments and any other Facility agreements entered into by OVG in furtherance of its duties hereunder. (e) Any obligations of the parties that are specifically intended to survive expiration or termination of this Agreement shall survive expiration or termination hereof. Page 12 of 65 ARTICLE 5 OWNERSHIP; USE OF THE FACILITY; CONCESSION AREAS Section 5.1 Ownership of Facility, Data, Equipment and Materials. City will at all times retain ownership of the Facility and the Foundation shall own all Facility FF&E. Foundation shall in all respects comply with the City Agreement in its performance hereunder and represents and warrants that Foundation is authorized to license the management and other services at and in connection with the Facility as fully set forth herein, in accordance with the terms and conditions of this Agreement. Any data, equipment, supplies, and materials furnished by Foundation to OVG or acquired by OVG as an Operating Expense shall remain the property of Foundation and shall be returned to Foundation when no longer needed by OVG to perform under this Agreement. Notwithstanding the above, Foundation recognizes that OVG intends to license certain third party software for use with respect to OVG's obligations at the Facility, the costs of which are paid on a monthly basis, and upon expiration or termination of the Term such software licenses shall remain with OVG. Furthermore, Foundation recognizes that the Operations Manual to be developed and used by OVG hereunder is proprietary to, and shall be owned by, OVG, but Foundation may retain a copy thereof for its own use following the end of the Term. Section 5.2 Right of Use by OVG. Foundation hereby gives OVG the right and license to use the Facility subject to all of the terms and conditions of the City Agreement applicable to such use, which are set forth on Schedule 5.2, attached hereto and OVG accepts such right of use, for the purpose of performing the services herein specified, including the operation and maintenance of all physical and mechanical facilities necessary for, and related to, the operation, maintenance, and management of the Facility; provided to the extent any such applicable terms and conditions of the City Agreement are amended or otherwise modified as between City and Foundation, such modified terms shall only be incorporated upon a written amendment hereto outlining such changes as appliable to OVG and OVG shall not be deemed in breach for failure to comply with any modified terms and conditions, unless and until such amendment is effective. To the extent of a conflict between the terms of the City Agreement and the terms of this Agreement, the terms of this Agreement will control. Foundation shall provide OVG, at no cost to OVG, a sufficient amount of suitable office space in or near the Facility and with such office equipment as is reasonably necessary to enable OVG to perform its obligations under this Agreement. Section 5.3 Observance of Agreements. Foundation agrees to pay, keep, observe, and perform all payments, terms, covenants, conditions and obligations under the City Agreement as set forth on Schedule 5.2, and any leases, use agreements, bonds, debentures, loans and other financing and security agreements to which Foundation is bound in connection with its use of the Facility. Section 5.4 Use by Foundation/City. Foundation shall have the right to use the Facility or any part thereof as provided in the City Agreement, provided that Foundation shall directly or through arrangements with a third party promptly reimburse OVG or deposit into the Operating Account, any out-of-pocket expenses incurred by OVG in connection with such use (such as the cost of ushers, ticket -takers, set-up and take -down personnel, security expenses, and other Page 13 of 65 expenses). Such non-commercial use of the Facility by Foundation (for itself or on behalf of the City) shall (1) not compete with or conflict with the dates previously booked by OVG for paying events, and (11) be booked in advance upon reasonable notice to OVG pursuant to the Facility's approved booking policies and subject to availability. Upon request of Foundation and subject to the terms of the City Agreement , OVG shall provide to Foundation a list of available dates for Foundation's use of the Facility. To the extent that OVG has an opportunity to book a revenue - producing event on a date which is otherwise reserved for use by Foundation, OVG may propose alternative dates for Foundations event, and Foundation shall use best efforts to reschedule its event to allow OVG to book the revenue -producing event. Section 5.5 Subcontractors; Concession Areas. OVG may engage sub -contractors to perform the Food and Beverage Services as set forth herein. OVG shall have the exclusive right to use any available (or permit a third party to use, as applicable) concession stands, novelty stands, customer serving locations, food preparation areas, vendor commissaries, kitchen and warehouse facilities, and other food service related areas of the Facility, together with the improvements, equipment and personal property upon or within such areas, for the purpose of providing the Food and Beverage Services (and providing other duties required of OVG hereunder). Prior to the Opening Date, Foundation shall, at no cost to OVG, provide for use by OVG a turnkey operation for the provision of Food and Beverage Services, equipped with equipment, smallwares and other tools of the trade reasonably required by OVG to provide the Food and Beverage Services at the level required by this Agreement. For avoidance of doubt any of the foregoing may be included, as mutually agreed, in the Pre -Opening Budget and/or in subsequent renovation budgets. ARTICLE 6 PERSONNEL Section 6.1 Generally. All Facility staff and other personnel shall be engaged or hired by OVG, and shall be employees, agents, or independent contractors of OVG (or an Affiliate thereof), and not of Foundation. OVG shall select, in its sole. discretion but subject to the approved Operating Budget, the number, function, qualifications, and compensation, including salary and benefits, of its employees and shall control the terms and conditions of employment (including without limitation termination thereof) relating to such employees. Foundation agrees that such personnel shall include at a minimum the positions set forth on the Personnel Staffing Chart to be provided to Foundation at least 60 days prior to the Opening Date, and attached hereto thereafter as Schedule 6.1. with such Personnel Staffing Chart to be subject to the prior written approval of Foundation, not to be unreasonably withheld. OVG agrees to use reasonable and prudentjudgment in the selection and supervision of such personnel. Foundation specifically agrees that OVG shall be entitled to pay its employees, as an Operating Expense, reasonable and customary bonuses, and benefits in accordance with OVG's then current employee policies, which may be modified by OVG from time to time in its sole discretion. A copy of OVG's current employee policies related to bonus and benefits shall be provided to Foundation upon request. Section 6.2 General Manager. Personnel engaged by OVG will include a qualified individual to serve as a General Manager of the Facility. Hiring of the General Manager shall Page 14 of 65 require the prior written approval of Foundation, which approval shall not be unreasonably withheld or delayed; provided, however, in the event of a vacancy in the General Manager position, OVG may temporarily fill such position with an interim General Manager for up to 60 days without the necessity of obtaining Foundation's approval. The General Manager will have general supervisory responsibility for OVG and will be responsible for day-to-day operations of the Facility, supervision of employees, and management and coordination of all activities associated with events taking place at the Facility. Section 6.3 Non-Solicitation/Non-Hiring. During the Term and for a period of one year after the end of the Term, neither Foundation nor any of its Affiliates shall solicit for employment, or hire, any of OVG's Management -Level Employees. Foundation acknowledges that OVG will spend a considerable amount of time identifying, hiring, and training individuals to work in such positions, and that OVG will suffer substantial damages, the exact amount of which would be difficult to quantify, if Foundation were to breach the terms of this Section by hiring, or soliciting for employment, any of such individuals. Accordingly, in the event of a breach or anticipated breach of this Section by Foundation, OVG shall be entitled (in addition to any other rights and remedies which OVG may have at law or in equity, including money damages) to equitable relief, including an injunction to enjoin and restrain Foundation from continuing such breach, without the necessity of posting a bond. ARTICLE 7 PRE -OPENING EXPENSES AND EXPENSE BUDGET Section 7.1 Establishment of Pre -Opening Expense Budget. OVG shall prepare the Pre - Opening Expense Budget within 60 days of the execution hereof. The Pre -Opening Expense Budget shall be subject to the prior written approval of Foundation, not to be unreasonably withheld, conditioned or delayed. Such Pre -Opening Budget may be adjusted by OVG from time to time during the Pre -Opening Period, subject to the written approval of the Foundation, not to be unreasonably withheld, conditioned, or delayed. Section 7.2. Funding of Expenses During Pre -Opening Period. Foundation shall pay for all Pre -Opening Expenses incurred by OVG in connection with the performance of its obligations under this Agreement during the Pre -Opening Period, as follows. Immediately following OVG's submission of the Pre -Opening Expense Budget and Foundation's written approval thereof, Foundation shall establish the Pre -Opening Expense Account, and transfer to such account an amount equal to the projected Pre -Opening Expenses and Pre -Opening Consulting Fee, for the first three months, as set forth in the Pre -Opening Expense Budget. On or before the first day of each succeeding month during the Pre -Opening Period, the Foundation shall transfer to the Pre - Opening Expense Account an amount equal to the projected Pre -Opening Expenses and Pre - Opening Consulting Fee for the subsequent two months, as set forth in the Pre -Opening Expense Budget through the conclusion of the Pre -Opening Period. OVG may access such account periodically, as needed, for the purpose of withdrawing funds to pay Pre -Opening Expenses including the Pre -Opening Consulting Fee. Page 15 of 65 ARTICLE 8 OPERATING BUDGET Section 8.1 Establishment of Operating Budget. OVG agrees that at least 30 days prior to the Opening Date in respect of the Stub Operating Year, and no less than 90 days prior to the commencement of each subsequent Operating Year in respect of such Operating Year, it will prepare and submit to the Foundation its proposed Operating Budget for such Operating Year. Each Operating Budget shall include OVG's good faith projection of Revenues and Operating Expenses, presented on a monthly and annual basis, for the upcoming Operating Year, or Stub Operating Year, as applicable. Foundation agrees to provide OVG with all information in its possession necessary to enable OVG to prepare each Operating Budget. Section 8.2 Approval of Operating Budget. Each Operating Budget shall be subject to the review and written approval of Foundation, which approval shall not be unreasonably withheld or delayed. In order for Foundation to fully evaluate and analyze such budgets or any other request by OVG relating to income and expenses, OVG agrees to provide to Foundation such reasonable financial and other information relating to the Facility as may be requested by Foundation from time to time. If events occur during any Operating Year that could not reasonably be contemplated at the time the corresponding Operating Budget was prepared, OVG may submit an amendment to such budget for review and approval by Foundation, which approval shall not be unreasonably withheld or delayed. If Foundation fails to approve any Operating Budget (or any proposed amendment thereto), Foundation shall promptly provide OVG the specific reasons therefore and its suggested modifications to OVG's proposed Operating Budget or amendment in orderto make it acceptable. The parties through representatives having decision making capacity shall then engage in good faith discussions and use reasonable commercial efforts to attempt to resolve the matter to the mutual satisfaction of the parties. Such meetings will be held in person if requested by either party. Section 8.3 Adherence to Operating Budget. OVG shall use all reasonable efforts to manage and operate the Facility in accordance with the Operating Budget. However, Foundation acknowledges that notwithstanding the OVG's experience and expertise in relation to the operation of facilities similar to the Facility, the projections contained in each Operating Budget are subject to and may be affected by changes in financial, economic, and other conditions and circumstances beyond the OVG's control, and that OVG shall have no liability if the numbers within the Operating Budget are not achieved. OVG agrees to notify Foundation within 30 days of any material negative variance in the bottom -line figure in the Operating Budget, and any material increase in total Facility expenses from that provided for in the Operating Budget. For purposes of this Section 8.3, a material variance or increase shall mean a variance or increase of more than 10%. In either such case and if requested by Foundation, OVG agrees to work with Foundation to develop and implement a plan (or changes to the then current plan) to limit Operating Expenses to be incurred in the remaining months of such Operating Year with the goal of achieving the Operating Budget. Page 16 of 65 Section 8.4 Food and Beverage Revenue and Expenses. All Food and Beverage Revenue shall be calculated separately each Monthly Accounting Period solely for purposes of payment of the Food and Beverage Fee, and shall be deposited by OVG into the Operating Account thereafter. All expenses incurred in connection with the provision of the Food and Beverage Services shall be Operating Expenses, payable by OVG with funds from the Operating Account. ARTICLE 9 PROCEDURE FOR HANDLING INCOME Section 9.1 Event Account. To the extent the Facility hosts a ticketed event and collects advance ticket sale revenue and/or admissions tax, OVG shall deposit as soon as practicable following receipt, in the Event Account, all revenue received from ticket sales and similar event -related revenues which OVG receives in contemplation of, or arising from, an event, pending completion of the event. Such monies will be held in escrow for the protection of ticket purchasers, Foundation and OVG, to provide a source of funds as required for payments to performers and for payments of direct incidental expenses in connection with the presentation of events that must be paid prior to or contemporaneously with such events. Promptly following completion and settlement of such events, OVG shall transfer all funds remaining in the Event Account, including any interest accrued thereon, into the Operating Account. Bank service charges, if any, on such account(s) shall be deducted first from interest earned. Section 9.2 Operating Account. Except as provided in Section 9.1, all Revenue derived from operation of the Facility shall be deposited by OVG into the Operating Account as soon as practicable upon receipt (but not less often than once each business day). The specific procedures (and authorized individuals) for making deposits to and withdrawals from such account shall be set forth in the Operations Manual, but the parties specifically agree that OVG shall have authority to sign checks and make withdrawals from such account, subject to the limitations of this Agreement, without needing to obtain the co -signature of an Foundation employee or representative. ARTICLE 10 FUNDING Section 10.1 Source of Funding. OVG shall pay all items of expense for the operation, maintenance, supervision, and management of the Facility from the funds in the Operating Account, which OVG may access periodically for this purpose. The Operating Account shall be funded with amounts generated by operation of the Facility (as described in Article 8 above), or otherwise made available by Foundation. To ensure sufficient funds are available in the Operating Account, Foundation will deposit in the Operating Account, on or before the Effective Date, the budgeted expenses for the Initial Stub Period. Foundation shall thereafter, on or before the first day of each succeeding month following the Effective Date, deposit (or allow to remain) in the Operating Account the budgeted or otherwise approved expenses for each such month, at all times maintaining sufficient funds in the Operating Account to pay the anticipated Page 17 of 65 expenses for the then -upcoming month plus the immediately following 2 months. OVG shall have no liability to Foundation or any third party in the event OVG is unable to perform its obligations hereunder, or under any third party contract entered into pursuant to the terms hereof, due to the fact that sufficient funds are not made available to OVG to pay such expenses in a timely manner. Section 10.2 Advancement of Funds. Under no circumstances shall OVG be required to pay for or advance any of its own funds to pay for any Operating Expenses. In the event that, notwithstanding the foregoing, OVG agrees to advance its own funds to pay Operating Expenses, Foundation shall promptly reimburse OVG for the full amount of such advanced funds (the "Advanced Funds"), plus interest at the rate of 10% per annum. ARTICLE 11 FISCAL RESPONSIBILITY; REPORTING Section 11.1 Records. OVG agrees to keep and maintain, at its office in the Facility, separate and independent records, in accordance with generally accepted accounting principles, devoted exclusively to its operations in connection with its management of the Facility. Such records (including books, ledgers, journals, and accounts) shall contain all entries reflecting the business operations of OVG under this Agreement. Foundation or its authorized agent shall have the right to audit and inspect such records from time to time during the Term and for three years thereafter, upon reasonable notice to OVG and during OVG's ordinary business hours. Section 11.2 Monthly Financial Reports. OVG agrees to provide to Foundation, within 30 days after the end of Monthly Accounting Period, financial reports for the Facility including a balance sheet, aging report on accounts receivable, and statement of revenues and expenditures (budget to actual) for such month and year to date in accordance with generally accepted accounting principles, provided however the first financial statement OVG shall provide shall be within 30 days following the second month of the Term, and shall cover the first 2 months of the Term. In addition, starting with the second month of the Term, OVG agrees to provide to Foundation a summary of bookings for each such month, and separate cash receipts and disbursements reports for each event held at the Facility during such month. Additionally, OVG shall submit to Foundation, or shall cause the applicable public depository utilized by OVG to submit to Foundation, on a monthly basis, copies of all bank statements concerning the Event Account and the Operating Account. In addition to such bank statements OVG shall make available to Foundation back up documents, such as cancelled checks, upon the specific written request of Foundation. Section 11.3 Audit. OVG agrees to arrange to provide to Foundation, within 120 days following the end of each Operating Year, a certified audit report on the accounts and records as kept by OVG for the Facility. Costs associated with obtaining such certified audit report shall be an Operating Expense of the Facility. Such audit shall be performed by an external auditor approved by Foundation in writing and shall be conducted in accordance with generally accepted auditing standards. Page 18 of 65 ARTICLE 12 CAPITAL IMPROVEMENTS Section 12.1 Schedule of Capital Expenditures. OVG shall annually, at the time of submission of the annual Operating Budget to Foundation, provide to Foundation a schedule of proposed capital improvements to be made at the Facility, for the purpose of allowing Foundation to consider such projects and to prepare and update a long-range Capital Expenditure budget. However, in this regard it is acknowledged that such capital expenditures may be subject to the approval of the City under the City Agreement and Foundation will support, but cannot guaranty, approval of the same. Section 12.2 Responsibility for Capital Expenditures. Foundation shall be solely responsible for all Capital Expenditures at the Facility; provided, however, Foundation shall be under no obligation to make any Capital Expenditures proposed by OVG and provided further that OVG shall have no liability for any claims, costs or damages arising out of a failure by Foundation to make any Capital Expenditures. Notwithstanding the foregoing, OVG shall have the right (but not the obligation), upon notice to Foundation and City, to make Capital Expenditures at the Facility for Emergency Repairs. In such event, Foundation shall promptly reimburse OVG for the cost of such Capital Expenditure. ARTICLE 13 LICENSES; ALCOHOLIC BEVERAGES; TAXES Section 13.1 Permits and Licenses. OVG shall use reasonable commercial efforts to secure and maintain throughout the Term all licenses and permits necessary for the operation of the Food and Beverage Services, including those required for the sale of alcoholic beverages at the Facility to include beer, wine and liquor. Foundation shall cooperate with OVG in connection with filing applications for, and securing and maintaining in good standing, any and all licenses and permits and renewals thereof needed by OVG to fulfill its obligations hereunder. In the event that OVG is unable to secure or maintain the necessary licenses or permits to sell alcoholic beverages at the Facility for any reason, or if OVG is prevented or limited from selling alcoholic beverages at the Facility for any reason, at OVG's request the parties shall renegotiate in good faith the economic terms of this Agreement so that the economic benefits provided to OVG hereunder are maintained. If, despite such good faith negotiations, the parties are unable to come to agreement on the revised economic terms of this Agreement, OVG may terminate this Agreement, without liability to OVG, upon 30 days written notice to Foundation. Section 13.2 Alcoholic Beverages. In connection with the sale of alcoholic beverages hereunder by OVG, OVG agrees to strictly comply with the laws of the state where the Facility is located regarding the sale of such beverages to minors. OVG agrees to adopt an identification policy to verify the age of potential purchasers of alcoholic beverages. OVG further agrees that it will endeavor not to sell alcoholic beverages to customers who are visibly intoxicated. OVG will institute and conduct training programs for OVG employees at the Facility on the proper Page 19 of 65 standards to use to avoid selling alcoholic beverages to customers who are or who appear to be intoxicated. OVG shall maintain liquor license liability insurance in customary and commercially reasonable amounts, as set forth in Schedule 17.1. Section 13.3 Taxes. OVG shall collect and pay all Taxes imposed upon the sale of concession and other retail items hereunder, as required by Federal, State or local law. OVG shall be responsible for and pay all social security, unemployment insurance, old age retirement and other federal and state taxes that are measured by the wages, salaries, or other remuneration paid to persons employed by OVG. Foundation shall be responsible for and hold OVG harmless from any and all possessory interest or leasehold taxes which may be levied or are in effect during the Term. ARTICLE 14 FACILITY CONTRACTS; TRANSACTIONS WITH AFFILIATES Section 14.1 Existingz Contracts. Foundation shall provide to OVG, on or before the Opening Date, copies of all Existing Contracts a list of which is included as Schedule 14.1. attached hereto. OVG shall administer and use commercially reasonable efforts to assure compliance with such Existing Contracts. Section 14.2 Execution of Contracts. OVG shall have the right to enter into Service Contracts, Revenue Generating Contracts and other contracts related to the operation of the Facility as agent on Foundation's behalf and all such contracts shall be entered into by OVG, as agent on behalf of Foundation provided that any Material Contract shall be subject to the prior approval of Foundation, not to be unreasonably withheld conditioned or delayed. Any Material Contract shall contain indemnification and insurance obligations on the part of each vendor, licensee, or service provider, as is customary for the type of services or obligations being provided or performed by such parties, naming each of OVG and Foundation as indemnified parties and additional insureds, respectively. OVG shall obtain the prior approval of Foundation (which approval shall not be unreasonably withheld or delayed) before entering into any such contract with a term that expires after the Term of this Agreement, unless such contract, by its express terms, can (1) be assigned by OVG to Foundation or any subsequent manager of the Facility, or (ii) be terminated by OVG or Foundation following expiration of the Term without any penalty. OVG shall provide copies of Service Contracts, Revenue Generating Contracts, Material Contracts and other contracts related to the operation of the Facility within fifteen days of the full execution of such contract. Section 14.3Transactions with Affiliates. In connection with its obligations hereunder relating to the purchase or procurement of services for the Facility (including without limitation the Food and Beverage Services, ticketing services, Commercial Rights sales, web design services and graphic design services), OVG may purchase or procure such services, or otherwise transact business with, an Affiliate of OVG, provided that it discloses the Affiliate nature of the transaction the prices charged and services rendered by such Affiliate are competitive with those obtainable from unrelated parties rendering comparable services. OVG shall, at the request of Foundation, provide reasonable evidence establishing the competitive nature of such Page 20 of 65 prices and services, including, If appropriate, competitive bids from other persons seeking to render such services at the Facility. ARTICLE 15 AGREEMENT MONITORING Section 15.1 Contract Administrator. Each party shall appoint a contract administrator who shall monitor such party's compliance with the terms of this Agreement. OVG's contract administrator shall be its General Manager at the Facility, unless OVG notifies Foundation of a substitute contract administrator in writing. Foundation shall notify OVG of the name of its contract administrator within 30 days of execution hereof. Any and all references in this Agreement requiring OVG or Foundation participation or approval shall mean the participation or approval of such party's contract administrator if the administrator is specifically delegated such authority in writing by the party, which shall include approval over all Material Contracts. ARTICLE 16 INDEMNIFICATION Section 16.1 Indemnification by OVG. OVG agrees to defend, indemnify and hold harmless Foundation, its Affiliates, and each of their respective directors, officers, employees, agents, successors and assigns (collectively, "Foundation Indemnified Parties") against any third -party claims or causes of action, and all costs, expenses (including reasonable attorneys' fees) liabilities, or damages relating to such third party claims (collectively, "Losses") suffered by any of the Foundation Indemnified Parties, arising out of or in connection with (i) negligent act or omission, or intentional misconduct, on the part of OVG or any of its employees or agents in the performance of its obligations under this Agreement or failure to comply with Laws, or (ii) breach by OVG of any of its representations, covenants or agreements made herein, except to the extent such Losses are claimed to arise from the act or omission of an Foundation Indemnified Party. Section 16.2 Indemnification by Foundation. Foundation agrees to defend, indemnify and hold harmless OVG, its Affiliates, and each of their respective directors, officers, employees, agents, successors and assigns (collectively, "OVG Indemnified Parties"), against any third -party Losses suffered by any of the OVG Indemnified Parties, arising out of or in connection with (i) any negligent act or omission, or intentional misconduct, on the part of Foundation or any of its employees or agents in the performance of its obligations under this Agreement, or failure to comply with Laws (ii) a breach by Foundation of any of its representations, covenants or agreements made herein, including without limitation Foundation's obligation to pay any budgeted or otherwise approved expenses in a timely manner, (III) failure by Foundation to pay any amounts due by Foundation or to otherwise perform any obligations of Foundation under any third party contracts, licenses or agreements entered into by OVG in furtherance of its duties hereunder as authorized hereby; or (iv) any act or omission carried out by OVG pursuant to the explicit direction or instruction of Foundation. Section 16.3 Conditions to Indemnification. With respect to each separate matter brought by any third party against which a party hereto ("Indemnitee") is indemnified by the Page 21 of 65 other party ("Indemnitor") under this Article 16, the Indemnitor shall be responsible, at its sole cost and expense, for controlling, litigating, defending and/or otherwise attempting to resolve, through counsel of its choice, any proceeding, claim, or cause of action underlying such matter, except that (i) the Indemnitee may, at its option, participate in such defense or resolution at its expense and through counsel of its choice; (11) the Indemnitee may, at its option, assume control of such defense or resolution if the Indemnitor does not promptly and diligently pursue such defense or resolution, provided that the Indemnitor shall continue to be obligated to indemnify the Indemnitee hereunder in connection therewith; and (III) neither Indemnitor nor Indemnitee shall agree to any settlement without the other's prior written consent (which shall not be unreasonably withheld or delayed). in any event, Indemnitor and Indemnitee shall in good faith cooperate with each other and their respective counsel with respect to all such actions or proceedings, at the Indemnitor's expense. With respect to each and every matter with respect to which any indemnification may be sought hereunder, upon receiving notice pertaining to such matter, Indemnitee shall promptly give reasonably detailed written notice to the Indemnitor of the nature of such matter and the amount demanded or claimed in connection therewith. Section 16.4 Legal Costs. Notwithstanding the other provisions of this Agreement, if legal costs are being incurred by OVG or Foundation for a third party claim in respect of which Foundation is claiming indemnity from the OVG, such legal costs will be considered an Operating Expense unless and until liability of the OVG pursuant to this Agreement is established by a court of competent jurisdiction or regulatory authority with respect to the underlying claim on which the OVG's obligation to indemnify is based. If the liability of the OVG is so determined, then such legal costs shall be considered as costs of the OVG (and not Operating Expenses) and covered by the indemnity given by the OVG to Owner hereunder and the parties shall adjust between them in respect of such legal costs. Section 16.5 Survival. The obligations of the parties contained in this Article 16 shall survive the termination or expiration of this Agreement. ARTICLE 17 INSURANCE Section 17.1 Types and Amount of Coverage. OVG agrees to obtain insurance coverage in the manner and amounts as set forth in Schedule 17.1, attached hereto, and shall provide to Foundation promptly following the Effective Date a certificate or certificates of insurance evidencing such coverage. OVG shall maintain such referenced insurance coverage at all times during the Term and will not make any material modification or change from these specifications without the prior approval of Foundation. The cost of all such insurance, including, without limitation, the cost of any coverage deductibles, coinsurance penalties, or self -insured retention under insurance policies, shall be an Operating Expense. Page 22 of 65 Section 17.2 Rating: Additional Insureds. All insurance policies shall be issued by insurance companies rated no less than A VIII in the most recent 'Bests" insurance guide and licensed to do business in the State or Commonwealth in which Facility is located, or as otherwise agreed by the parties. All such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. The commercial general liability policy, automobile liability insurance policy and umbrella or excess liability policy to be obtained by OVG hereunder shall name Foundation as an additional insured. The workers' compensation policy to be obtained by OVG hereunder shall contain a waiver of all rights of subrogation against Foundation. OVG shall require that all third -party users of the Facility, including without limitation third -party licensees, ushers, security personnel and concessionaires, provide certificates of insurance evidencing insurance appropriate for the types of activities in which such user is engaged, and industry -standard. If OVG subcontracts any of its obligations under this Agreement, OVG shall require each such subcontractor to secure insurance that will protect against applicable hazards or risks of loss as and in the minimum amounts designated herein, and name OVG and Foundation as additional insureds. Section 17.3 Foundation Insurance. Foundation agrees to obtain insurance coverage in the manner and amounts as set forth in Schedule 17.3, attached hereto, and shall provide to OVG promptly following the Effective Date a certificate of certificates of insurance evidencing such coverage. Foundation shall maintain such referenced insurance coverage at all times during the Term and will not make any material modification or change from these specifications without prior notification to the OVG. The Foundation shall provide to the OVG at least thirty (30) days written notice of cancellation or material change in the terms and provisions of the applicable policy. ARTICLE 18 REPRESENTATIONS, WARRANTIES AND COVENANTS Section 18.1 OVG Representations and Warranties. OVG hereby represents, warrants, and covenants to Foundation as follows: (a) that it has the full legal right, power, and authority to enter into this Agreement and to grant the rights and perform the obligations of OVG herein, and that no third party consent or approval is required to grant such rights or perform such obligations hereunder; and (b) that this Agreement has been duly executed and delivered by OVG and constitutes a valid and binding obligation of OVG, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar Laws affecting creditors' rights generally or by general equitable principles. Section 18.2 Foundation Representations, Warranties and Covenants. Foundation represents, warrants, and covenants to OVG as follows: Page 23 & 65 (a) that the City Agreement will remain in full force and effect throughout the Term of this Agreement, and that Foundation has all necessary rights and authority to enter into this Agreement and no other explicit approval from City is required in connection with OVG's performance hereunder provided that, OVG understands and agrees that under the City Agreement, the City has the right to terminate the City Agreement if the City does not appropriate funding as provided in Section VILA of the City Agreement; (b) that it has the full legal right, power, and authority to enter into this Agreement and to grant the rights and perform the obligations of Foundation herein, and that no other third party consent or approval is required to grant such rights or perform such obligations hereunder. (c) that this Agreement has been duly executed and delivered by Foundation and constitutes a valid and binding obligation of Foundation, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting creditors' rights generally or by general equitable principles. (d) to the actual knowledge of Foundation, with a reasonable duty of investigation, t the Facility will be, as of the Opening Date, in compliance in all respects with all applicable Laws relating to the construction, use and operation of the Facility (including, without limitation, Title III of the American with Disabilities Act), and that there exist no structural defects or unsound operating conditions at the Facility. ARTICLE 19 MISCELLANEOUS Section 19.1 PCI Compliance. OVG agrees to comply with all current Payment Card Industry Data Security Standards ("PCI Standards") and guidelines that may be published from time to time by Visa, MasterCard or other associations as they relate to the physical storage of credit card data. OVG shall provide Foundation with a written vendor plan for IT upon request. For PCI Standards compliance purposes, Foundation will provide on a segmented network, an appropriate number of wired data connections to the Internet for point of sale devices to be used by OVG and any contractors at the Facility. Foundation shall be responsible for the security of its network, including, without limitation, applicable PCI-DSS compliance, and for procuring and installing point of sale (POS) payment systems that are compliant with the latest PCI-DSS requirements. If at any time either party determines that card account number or other information has been compromised, such party will notify the other immediately and assist in providing notification to the proper parties as deemed necessary. Section 19.2 No Discrimination. OVG agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, religion, color, sex, sexual orientation, disability, national origin, ancestry, physical handicap, or age, and will take affirmative steps to ensure that applicants are employed, and employees are treated during employment, without regard to race, religion, color, sex, sexual orientation, disability, national origin, ancestry, physical handicap, or age. Page 24 of 65 Section 19.3 Use of Facility Names and Logos. OVG shall have the right to use throughout the Term (and permit others to use in furtherance of OVG's obligations hereunder), for no charge, the name and all logos of the Facility, on OVG's stationary, in its advertising of the Facility, and whenever conducting business of the Facility; provided, that OVG shall take all prudent and appropriate measures to protect the intellectual property rights of Foundation and City relating to such logos. All intellectual property rights in any Facility logos developed by the OVG or Foundation shall be and at all times remain the sole and exclusive property of Foundation. OVG agrees to execute any documentation requested by Foundation from time to time to establish, protect or convey any such intellectual property rights. Section 19.4 Facility Advertisements. Foundation agrees that in all advertisements placed by Foundation for the Facility or events at the Facility, whether such advertisements are in print, on radio, television, the internet or otherwise, it shall include a designation that the Facility is a "Managed by OVG360." Section 19.5 Force Majeure; Casualty Loss. (a) Neither party shall be liable or responsible to the other party for any delay, loss, damage, failure or inability to perform under this Agreement due to an Event of Force Majeure, provided that the party claiming failure or inability to perform provides written notice to the other party within thirty (30) days of the date on which such party gains actual knowledge of such Event of Force Majeure and the anticipated term of such Event of Force Majeure. Notwithstanding the foregoing, in no event shall a party's failure to make payments of any kind due hereunder be excusable due to an Event of Force Majeure. (b) In the event of damage or destruction to a material portion of the Facility by reason of fire, storm or other casualty loss that renders the Facility (or a material portion thereof) untenantable, Foundation shall use reasonable efforts to remedy such situation. If notwithstanding such efforts, such damage or destruction is expected to render the Facility (or a material portion thereof) untenantable for a period estimated by an architect selected by Foundation at OVG's request, of at least one 180 days from the date of such fire, storm or other casualty loss, either party may terminate this Agreement upon written notice to the other, provided that (I) Foundation shall pay to OVG its costs of withdrawing from services hereunder, as described in Section 4.3 above, and (ii) in the event the Facility once again becomes tenable at any time during the Term, this Agreement shall, at the option of OVG, once again become effective and OVG shall manage and operate the Facility under the terms hereof, except that the Term shall be extended for a period of time in which the Facility was closed. Section 19.6 Assignment; Binding on Successors and Assigns. Neither party may assign this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that either party may, without the prior written consent of the other party but upon at least 30 days' written notice to the other party, assign this Agreement in connection with a sale, merger or other business combination involving all or substantially all of its assets or equity interests, and OVG may further assign this Agreement to an Affiliate where such assignment is intended to accomplish an internal corporate purpose of Page 25 of 6s OVG as opposed to materially and substantially altering the method of delivery of services to Foundation. Any purported assignment in contravention of this Section shall be void. This Agreement is binding on successors and permitted assigns of the parties. Section 19.7 Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, 3 days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. A courtesy copy of notices shall be sent electronically to the email addresses included below. f to Foundation: If to OVG: Palm Springs Theatre Foundation OVG360 1775 E. Palm Canyon Drive, 150 Rouse Blvd. Suite 110-1208 Philadelphia, PA 19112 Palm Springs, CA 92264 Attn: CEO With a copy to: OVG360 150 Rouse Blvd. Philadelphia, PA 19112 Attn: General Counsel Email: OVG36OLegal@oakviewgroup.com The designation of the individuals to be so notified and the addresses of such parties set forth above may be changed from time to time by written notice to the other party in the manner set forth above. Section 19.8 Severability. If a court of competent jurisdiction determines that any term of this Agreement is invalid or unenforceable to any extent under applicable law, the remainder of this Agreement (and the application of this Agreement to other circumstances) shall not be affected thereby, and each remaining term shall be valid and enforceable to the fullest extent permitted by law. Section 19.9 Entire Agreement. This Agreement (including the exhibits attached hereto) contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior negotiations, correspondence, conversations, agreements, and understandings concerning the subject matter hereof. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations, agreements or understandings, whether oral or written. In the event of a conflict between this Agreement Page 26 of 65 and any exhibit, the terms of this Agreement shall control, unless an exhibit specifically states otherwise. Section 19.10 Governing Law; Venue. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of California, without regard to its conflict of laws principles. The parties agree that the venue for any action under this Agreement shall be exclusively with the state or federal courts within the County of Riverside, California. Section 19.11 Amendments. This Agreement may not be amended except by an instrument in writing signed by an authorized representative of each of the Parties. Section 19.12 Waiver; Remedies. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the remedies provided by law or in equity. Section 19.13 Relationship of Parties. OVG and Foundation acknowledge and agree that they are not joint venturers, partners, or joint Foundations with respect to the Facility, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or similar relationship between Foundation and OVG. In operating the Facility, entering into contracts, accepting reservations for use of the Facility, and conducting financial transactions for the Facility, OVG acts on behalf of and as agent for Foundation (but subject to the limitations on OVG's authority as set out in this Agreement), with the fiduciary duties required by law of a party acting in such capacity. Section 19.14 No Third Party Beneficiaries. Other than the indemnitees listed in Sections 16.1 and 16.2 hereof (who are third party beneficiaries solely with respect to the indemnification provisions in such sections), there are no intended third party beneficiaries under this Agreement, and no third party shall have any rights or make any claims hereunder, it being intended that solely the parties hereto (and the aforementioned indemnitees with respect to the indemnification provisions hereof) shall have rights and may make claims hereunder. Section 19.15 Attorneys' Fees. If any suit or action is instituted by either party hereunder, including all appeals, the prevailing party in such suit or action shall be entitled to recover reasonable attorneys' fees and expenses from the non -prevailing party, in addition to any other amounts to which it may be entitled. Section 19.16 Limitation on Damages. In no event shall either party be liable or responsible for any consequential, indirect, incidental, punitive, or special damages (including, without limitation, lost profits) whether based upon breach of contract or warranty, negligence, strict tort liability or otherwise, and each party's liability for damages or losses hereunder shall Page 27 of 6S be strictly limited to direct damages that are actually incurred by the other party; provided that the foregoing shall not limit or restrict any claim by OVG for the fees specifically described herein upon a breach or default of this Agreement by Foundation; the parties expressly agree that, upon a breach or default hereunder by Foundation, any claim by OVG for the remaining fees through the original expiration date of this Agreement shall be deemed to be a claim for direct damages. Section 19.17 Counterparts; Facsimile and Electronic Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. This Agreement may be executed by the parties and transmitted by electronic transmission, and if so executed and transmitted, shall be effective as if the parties had delivered an executed original of this Agreement. ACCEPTED AND AGREED as of the Effective Date: THE PLAZA THEATRE FOUNDATION By: — Name: Title: GLOBAL SPECTRUM, L.P., d/b/aOVG360 By: Global Spectrum, LLC, its general partner 0 Page 28 of 65 Brian Rothenberg President SCHEDULE 1.1 FACILITY DEFINED _2g_ 55575. 18 100\41839786.1 SCHEDULE 2.1(A) PRE -OPENING CONSULTING AND MANAGEMENT DUTIES Foundation represents that OVG shall have all appropriate rights, authorization, and authority to perform the following services at and with respect to the Facility, such limitations and/or restrictions shall not be deemed a breach hereof by OVG. I. Pre -Opening Consulting. During the Pre -Opening Period, OVG shall perform the following duties: (a) Assist Foundation with its review of the design of the Facility and make recommendations to Foundation with respect to such design. (b) Advise Foundation on any construction and operational issues with respect to the Facility that may arise during the Pre -Opening Period. (c) Advise Foundation on risk management and insurance needs in connection with the operation of the Facility. (d) Assist Foundation in developing and implementing a telecommunications plan for the Facility. (e) Develop and recommend a proposed inventory of FF&E to be used at the Facility, including those relating to food and beverage services; provided that OVG's involvement in the purchase of FF&E shall be subject to an additional mutually agreed fee. (f) Prepare and submit to Foundation a list of operating supplies necessary for the start-up of the Facility. (g) Prepare and submit to Foundation food and beverage budget, menu concepts (including proposed pricing) and food and beverage designs, including layouts for kitchens and concession stands. (h) Work with Foundation to secure appropriate license as described in Section 13.1. (i) Prepare and submit to Foundation pre -opening and operational sales, marketing, public relations, advertising, promotion, and revenue -generating event booking strategies and plans for maximizing revenues from the Facility. FOUNDATION ACKNOWLEDGES THAT NEITHER OVG NOR ITS EMPLOYEES, AGENTS, PARTNERS, OR AFFILIATES, ARE ARCHITECTS, GENERAL CONTRACTORS, ENGINEERS OR FINANCIAL ADVISORS, AND THEIR CONSULTING SERVICES PROVIDED UNDER THIS AGREEMENT ARE BASED ON THEIR OPERATIONAL KNOWLEDGE OF SPORTS COMPLEXES, ARENAS, STADIUMS AND OTHER SIMILAR FACILITIES AND SHOULD NOT BE CONSTRUED AS A REPRESENTATION OF ARCHITECTURAL, CONSTRUCTION, ENGINEERING OR FINANCIAL PRACTICES. NEITHER FOUNDATION NOR ANY OF ITS - zn- SSi',i IS I(XI 41818'86.1 RESPECTIVE AGENTS, CONSULTANTS, CONTRACTORS, OR REPRESENTATIVES, WILL RELY UPON OVG OR ITS PARTNERS AS HAVING ARCHITECTURAL, CONSTRUCTION, ENGINEERING OR FINANCIAL EXPERTISE. Il. Pre -Opening Management During the Pre -Opening Period and the Stub Operating Year, OVG shall perform the following additional duties: (a) Develop an Operations Manual for the Facility. OVG shall deliver a "template" of the Operations Manual to Foundation at least 60 days prior to the projected Opening Date and shall customize such template to applyto the Facility no lessthan 120 days following the Opening Date. The final version of the Operations Manual shall be mutually agreed upon by the parties. (b) Establish prices, rates and rate schedules for user, license, concessions, occupancy, and advertising agreements, and booking commitments, at the Facility. OVG may deviate from the established rate schedule when entering into any such agreements if determined by OVG, using its reasonable business judgment, to be necessary or appropriate with respect to the specific situation. (c) Procure, negotiate, execute (as agent for Foundation), administer, and assure compliance with Service Contracts. All such agreements shall provide for termination in the event the Facility is not constructed or completed for any reason. (d) Procure, negotiate, execute (as agent for Foundation), administer, and assure compliance with Revenue Generating Contracts. (e) Arrange for and otherwise book revenue -generating events at the Facility in accordance with a booking schedule to be developed by OVG, in consultation with Foundation. (f) Create a program and schedule of costs for the rental of the venue to outside user groups, including varying scenarios for City use, local non -profits, and commercial promoters. (g) Plan, promote and execute, in conjunction with the Foundation, a "grand opening" event or events at the Facility. (h) Engage, supervise, and direct all personnel at the Facility that OVG deems necessary to perform the pre -opening services described herein, and conduct staff planning, retention and training programs with respect to such personnel as determined to be necessary by OVG in its sole discretion. (i) Maintain detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles. 55A75-INI004183,$7% 1 W Cause such other acts and things to be done with respect to the Facility, as determined by OVG in its reasonable discretion to be necessary for the management and operation of the Facility prior to the Launch Date. 32 - 55575.18 IOUA 1838796.1 SCHEDULE 2.1 (B) POST OPENING DATE MANAGEMENT SERVICES Following the Pre -Opening Period, OVG's management obligations under the Agreement shall consist of the following obligations, all of which are subject to the terms hereof and the controls and restrictions in the Operations Manual: (a) Manage all aspects of the Facility in accordance with the Operations Manual and the terms of this Agreement, including but not limited to managing purchasing, payroll, fire prevention, security, crowd control, routine repairs, preventative maintenance, janitorial services, promotions, advertising, energy conservation, security, box office, admission procedures, parking (if applicable), and general user services not otherwise provided by City and/or Foundation. (b) Establish and adjust prices, rates and rate schedules for user, license, concessions, occupancy, and advertising agreements, and booking commitments subject to the advanced written consent of Foundation. OVG may deviate from the established rate schedule when entering into any such agreements if determined by OVG, using its reasonable business judgment, to be necessary or appropriate with respect to the specific situation subject to the advanced written consent of OVG (0 Procure, negotiate, execute, administer and assure compliance with Service Contracts, Revenue Generating Contracts, and other contracts related to the operation of the Facility. (d) Require that all material vendors and licensees of the Facility execute vendor/license agreements containing standard indemnification and insurance obligations on the part of each such vendor/licensee. (e) Provide standard form advertising and sponsorship contracts and user/rental agreements for use at or with respect to the Facility. OVG shall submit such form agreements to Foundation for review and comment, and the parties shall work together to finalize such forms. Once finalized, OVG shall use such forms in furtherance of its duties hereunder, and shall not materially deviate from the terms contained in such forms without obtaining the prior approval of Foundation (which shall not be unreasonably withheld). OVG's sole responsibility with regard to providing legal advice or assistance hereunder shall be to provide such standard form contracts. (f) Operate and maintain the Facility, including the equipment utilized in connection with its operation and any improvements made during the term of this Agreement, in the condition received, normal wear and tear excepted. (g) Arrange for and otherwise book events at the Facility in accordance with a booking schedule to be developed by OVG. 5i$7j_19100 41SIK786I .. (h) Hire or otherwise engage, pay, supervise, and direct all personnel OVG deems necessary for the operation of the Facility in accordance with Article 6 of the Agreement, and conduct staff planning, retention and training programs as determined to be necessary by OVG in its sole discretion. (i) Maintain detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles, which records shall be made available to Foundation upon request, in accordance with Section 11.1 of the Agreement. (j) Submit to Foundation in a timely manner financial and other reports detailing OVG's activities in connection with the Facility, as set forth in Section 11.2 of the Agreement. (k) Prepare a proposed annual Operating Budget and submit such proposed budget to Foundation, both in accordance with Article 8 of the Agreement. (1) Pay all Operating Expenses and other expenses incurred in connection with the operation, maintenance, supervision and management of the Facility from the Operating Account or with funds otherwise made available by Foundation. (m) Secure, or assist Foundation (or any other third party, as applicable) to secure, all licenses and permits necessary for the operation and use of the Facility for the specific events to be held therein, and for the general occupancy of the Facility, including without limitation all necessary food and liquor licenses, and renewals thereof. Foundation shall cooperate in this process to the extent reasonably required. All costs associated with this process shall be Operating Expenses. (n) Collect, deposit and hold in escrow in the Event Account any ticket sale revenues which it receives in the contemplation of or arising from an event pending the completion of the event, as more fully described in Section 9.1 of the Agreement. (o) Collect in a timely manner and deposit in the Operating Account all Revenue, as more fully described in Section 9.2 of the Agreement (p) Subject to Foundation making available sufficient funds in a timely manner, pay all Taxes. (q) Assist in the preparation, maintenance, and implementation of a marketing plan for the Facility, as requested and subject to Foundation's approval. (r) Assist in the planning, preparation, and implementation of all public relations and other promotional programs for the Facility, as requested. (s) Manage and oversee the sale of Commercial Rights, including naming rights, at or in connection with the Facility. za - ics7s_ IS IN 141 N,S796.I (t) On an annual basis, cause a written inventory to be taken of all FF&E, supplies, tools and vehicles at the Facility, and deliver a written report of the foregoing to Foundation. OVG shall document all major damage to, or loss in, such inventory during the Term as soon as such damage or loss is discovered by OVG, and OVG shall promptly notify Foundation of any such damage or loss. (u) Purchase, on behalf of Foundation and with Foundation funds, and maintain during the Term, all materials, tools, machinery, equipment and supplies necessary for the operation of the Facility. (v) As agent for Foundation, manage risk management and Facility insurance needs, as more fully described in Article 17 of the Agreement. (w) Make and be responsible for all routine and minor repairs, maintenance, preventative maintenance, and equipment servicing. OVG shall be responsible for ensuring that all repairs, replacements, and maintenance shall be of a quality and class at least equal to that of the item being repaired, replaced, or maintained. Any replacement of an item in inventory, or any new item added to the inventory, which is paid for by Foundation, shall be deemed the property of Foundation. W Cause such other acts and things to be done with respect to the Facility, as determined by OVG in its reasonable discretion to be necessary for the management and operation of the Facility following the Opening Date. -35- 55575,18100 41838786.1 SCHEDULE 2.1(C) POST OPENING DATE OVG FOOD AND BEVERAGE SERVICES OVG's food and beverage obligations under the Agreement shall consist of the following obligations, all of which are subject to the terms hereof and the controls and restrictions in the Operations Manual: (a) Develop and implement all necessary policies and procedures for the food and beverage operations; (b) Engage and oversee employees necessary to perform the food and beverage services at the Facility; (c) Manage the food and beverage services in compliance with and subject to all federal, state and local laws, ordinances and regulations (including, without limitation, health and sanitation codes and regulations with respect to the sanitation and purity of the food and beverage products for sale); (d) Arrange for all minor repairs and routine maintenance to the equipment used in the operation of the food and beverage services; (e) Keep the food and beverage facilities and equipment neat, clean and in a sanitary condition; (f) Undertake appropriate advertising, marketing and promotion of the food and beverage offerings at the Facility; (g) Develop menus, portions, brands, prices, themes and marketing approaches. OVG (or its designee concessionaire, as applicable) shall be entitled to set the prices for such items for sale; and (h) Order, stock, prepare, pay for (as an Operating Expense) and sell appropriate foods and beverages. - 36 - 55575.18100 41838786.1 SCHEDULE 5.2 CITY AGREEMENT APPLICABLE TERMS The City Agreement outlines the terms and conditions under with the Foundation manages and operates the Facility. The following provisions of the City Agreement, effective as of the Effective Date, are specifically highlighted and incorporated into the Agreement by reference. • Section IV (Services to be Performed) in its entirety • Section V.A (Financial Responsibility) • Section V.D (Accounting and Financial Records and Reporting) in its entirety • Section V.I.A3 (Repair), second sentence • Section VI.B (Covenants By the Foundation) in its entirety, except the first two (2) sentences of Section VI.B.I (Operating Costs), and except with respect to Section 1V.B.12 (Insurance) which obligation shall be replaced with the Schedule 17.1 OVG Insurance Requirements attached to this Agreement. • Section VII (Termination) in its entirety: provided that such termination shall be issued by Foundation and not City. • Section VIII (General Provisions) in its entirety, except the following subsections: o Section VIME (Force Majeure) o Section VIII.F (Notices) o Section VIII.I (Singular) o Section VIII.J (Headings) o Section VIII.M (Entire Agreement) o Section VIII.N (Partial Invalidity) o Section VIH.O (Incorporation of Exhibits) o Section VIII.Q (Counterparts) _;7_ 55575.18100`A 1838786.1 SCHEDULE 6.1 PERSONNEL STAFFING CHART (to be completed and agreed by the parties prior to the Opening Date) W:11 55575.19100`41938786.1 SCHEDULE 14.1 EXISTING CONTRACTS [Foundation to attach current list and to update prior to the Opening Date] _39_ 53575.18100141838786.1 SCHEDULE 17.1 OVG INSURANCE Insurance To Be Maintained By OVG. OVG shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the Term of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall apply against claims which may arise from OVG's performance of the Services and related work under this Agreement, including OVG's agents, representatives, or employees. OVG shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. If any insurance is written on a claims -made basis, such insurance shall be maintained for a minimum of three (3) years subsequent to the expiration of this Agreement, or a three (3) year extended reporting period endorsement shall be purchased. The minimum amount of insurance required shall be as follows: Workers' Compensation. To the extent required by California law, OVG 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, in compliance with all other statutory requirements, as required by the State of California. Foundation agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and shall endeavor to use commercially reasonable efforts to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. 2. Crime Fidelity Coverage. At least $100,000.00 per occurrence of coverage for (i) OVG employee dishonesty; (ii) forgery or alteration; (III) theft, disappearance and destruction inside and outside the Theatre; and (iv) robbery and safe burglary inside and outside the Theatre. 3. Commercial General Liability. OVG shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least four million dollars ($4,000,000.00) for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. Any combination of primary and umbrella liability policies shall satisfy this requirement. 4. Employers Liability Coverage. OVG shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of employer's 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. 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, such approval not to be unreasonably withheld. OVG guarantees payment of all deductibles and self -insured retentions. Other Insurance Requirements. The following provisions shall apply to the insurance policies required of OVG under this Agreement: -40- 55575.18100kt1838786.1 a. For any claims related to this Agreement, except for Crime and Workers' Compensation/Employers Liability, OVG's coverage shall be primary insurance with respect to the Foundation/City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the Foundation/City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of OVG's insurance and shall not contribute with it. b. Commercial General Liability insurance coverage and limits provided by OVG 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. c. It is OVG's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. d. OVG agrees to ensure, if commercially reasonable, that subcontractors, and any other parties involved with the scope of Management Services and related Work provided pursuant to this Agreement, who are brought onto or involved by OVG provide the same minimum insurance coverage required of OVG. OVG 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. OVG agrees that upon request, all agreements with subcontractors and others engaged in the performance of services hereunder this Agreement will be submitted to the City and Foundation for review. e. OVG acknowledges and agrees that any actual or alleged failure on the part of the Foundation or City to inform OVG of non-compliance with any insurance requirement in no way imposes any additional obligations on the City or Foundationnor does it waive any rights in this or any other regard. f. OVG 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. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to Foundation and City prior to the policy expiration and/or renewal date. g. 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. h. 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. i. OVG agrees to provide immediate notice to Foundation/City of any claim or loss against OVG arising out of the services and related work performed under this Agreement and for any other claim or loss that may reduce the insurance available to pay claims arising out of this Agreement. OVG assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such -41- 55575. 18100'41838786.1 claim or claims if they are likely to involve Foundation/City, or to reduce or dilute insurance available for payment of potential claims. J. OVG agrees that the provisions of this Schedule shall not be construed as limiting in any way the extent to which the OVG may be held responsible for the payment of damages resulting from OVG's activities or the activities of any person or person for which OVG is otherwise responsible. 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 A-, VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. Verification of Coverage. OVG shall furnish City and Foundation with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates 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 Foundation before services commence. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The Foundation and City of Palm Springs, their 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 respect to the City or Foundation" may be included in this statement) for General and Auto Liability policies. B. "This insurance is primary and non-contributory over any insurance or self-insurance the Foundation or City may have..." ("as respects City of Palm Springs Contract No._" or 'for any and all work performed with respect to the City or Foundation" may be included in this statement) for General and Auto Liability policies. C. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of the Foundation and City, their elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the Foundation and 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 in writing by the Foundation/City before Management Services commence. 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 Services shall not waive OVG's obligation to provide them. -q2- S517S.1XIIxl41R38786A SCHEDULE 17.3 FOUNDATION INSURANCE At all times during this Agreement, Foundation shall maintain the following insurance coverage: (a) Commercial Property Insurance for Facility: To be obtained by City. (b) Property/casualty Insurance for the FFE. i. Commercial Liability Insurance: $1,000,000 per occurrence $1,000,000 personal and advertising injury $1,000,000 products -completed operations aggregate If required by law Statutory Worker's Compensation and Employer's Liability Insurance shall be required by and be in conformance with the laws of the State or Commonwealth where Facility is located. L Workers Compensation: Statutory ii. Employer's Liability: $1,000,000 each accident -bodily injury by accident; $1,000,000 policy limit -bodily injury by disease; $1,000,000 each employee -bodily injury by disease Additional Terms: • All policies shall be issued by insurance companies authorized by the state or commonwealth where the Facility is located and have an A.M. Best rating of at least A- VIII or better for the duration of the contract and any extensions thereof. • All policies shall include a waiver of subrogation in favor of the OVG and be primary and non-contributory with any available insurance policies and programs of self-insurance of the OVG. _q3- 55575. 1810041838786.1 Exhibit A [Copy of Executed Management, Operation & Entertainment Production Services for the Historical Plaza Theatre Agreement dated July 24, 2023] -44- 55575.18I00`41838786.1 AGREEMENT FOR MANAGEMENT, OPERATION AND ENTERTAINMENT PRODUCTION SERVICES FOR THE HISTORIC PLAZA THEATRE BY AND BETWEEN THE PALM SPRINGS PLAZA THEATRE FOUNDATION THE CITY OF PALM SPRINGS -45- 55575. 18100'41838786.1 AGREEMENT FOR MANAGEMENT, OPERATION AND ENTERTAINMENT PRODUCTION SERVICES FOR THE HISTORIC PLAZA THEATRE BY AND BETWEEN THE PALM SPRINGS PLAZA FOUNDATION AND THE CITY OF PALM SPRINGS This agreement for management, operation, and entertainment production and assistance services for the Historic Plaza Theatre ("Agreement") is entered into, as of July 24, 2023 for reference purposes only, by and between the City of Palm Springs, a California charter city and municipal corporation ("City") and The Palm Springs Plaza Theatre Foundation, a California nonprofit corporation ("Foundation"), referred to individually as a "Parry" and collectively as the "Parties". RECITALS WHEREAS, the City is the owner of the historic Plaza Theatre, located at 128 South Palm Canyon Drive, Palm Springs California (the "Plaza Theatre" or "Theatre"); WHEREAS, the City acquired the Plaza Theatre from the former Patin Springs Community Redevelopment Agency, with the understanding that the City will assume the financial responsibility of the renovations after the acquisition and that the City will secure a new operator and that the Plaza Theatre will be maintained as a historic structure and performing arts venue; WHEREAS, the Foundation was established as a nonprofit public benefit corporation in the State of California on October 21, 2021, and thereafter obtained its status as a 501(c)(3) organization; WHEREAS, the Foundation's corporate purposes include providing funds for the restoration, renovation, reconstruction, maintenance or operation of the Theatre; WHEREAS, the Foundation has raised funds sufficient to renovate and reconstruct the Theatre to its historic grandeur; WHEREAS, the Parties now wish to enter into this Agreement, in order to provide for the management, operation and entertainment production services for the Theatre, in an effort to carry out the Parties' intent that the Theatre be maintained as a community asset and operated for the benefit of the public. NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows: Section I. Purpose The purpose of this Agreement is to state the terms and conditions under which the Foundation will manage and operate the Plaza Theatre (including maintenance, but not repair, as set forth more fully below), produce entertainment presentations at the Plaza Theatre, and provide production assistance services for entertainment presentations presented by other users of the Plaza Theatre (collectively, the "Services"). The Foundation may provide these services itself, or through a third -party selected by Foundation and approved by the City. 55575. 18100`41838786.1 Section II. Related Agreements. The Foundation may contract with a professional theatre management firm (a "Management Firm") for the performance of the Services and the fulfillment of one or more of the Foundation's obligations under this Agreement. In the event the Foundation desires to provide the Services by way of such Management Firm, such arrangement shall be memorialized in writing. If the Foundation desires to contract with a Management Firm for the management of the Theatre, such third party must be a professional theatre management firm or company. Such third party agreement shall incorporate the provisions of this Agreement. The City shall have the authority to reject/veto any Management Firm; provided, however, that the City shall not have the authority under this Agreement to approve or disapprove other employees, contractors or subcontractors that the Foundation or Management Firm may choose to engage. Section M. Term. The term ("Term") of this Agreement shall be ten (10) years, commencing on January 1, 2024 through and including December 31, 2033, unless sooner terminated as provided herein or unless extended by the written mutual agreement of the Parties. Section IV. Services to be Performed A. Exclusive Management and Ooemtional Responsibility. Foundation shall assume exclusive management and day-to-day operational responsibility for the Plaza Theatre, including, but not limited to: (1) the maintenance obligations delineated in Exhibit A "Responsibility for Maintenance and Repairs"; (2) arranging for continuous security for the Plaza Theatre premises and all contents thereof, as set forth below: (3) providing supervision, coordination and technical support for other users of the Plaza Theatre; (4) establishing, collecting, depositing and accounting for payments made by other users of the Plaza Theatre: (5) at its own expense, hiring and contracting with consultants, and other professionals or experts that the Foundation, in its sole discretion, determines are necessary to perform its obligations and responsibilities under this Agreement: (6) employing, supervising, and terminating staff to perform its obligations and responsibilities under this Agreement; and, (7) taking such other actions, making all decisions, and entering into such contracts and agreements with third parties as may be required to perform the obligations and responsibilities required by this Agreement. 55575,18100 41838786.1 B. Entertainment Productions. The Foundation shall produce or cause to be produced live entertainment presentations in the Plaza Theatre, through its own efforts or in collaboration or by agreement with other performing artists. The Theatre shall primarily be used for performances and events of the highest quality, including, but not limited to, concerts, chamber orchestra performances, film festivals, the short film festival, community meetings, addresses, conventions, cabaret performances, booked acts, lectures, music festivals, ideas festivals, charity and fundraising events, and other theater performances and events ("Entertainment Presentations"). The Foundation will limit "community theater" or amateur productions to twenty-one (21) days per year, which productions may (but need not necessarily be) a City Use as defined in Section VI(B)(3) below. I. Required Performances. During each calendar year this Agreement is in effect, the Foundation shall produce and present, or cause to be produced and presented a combined total of not fewer than fifty-two (52) performance days of Entertainment Presentations, as hereinafter defined. Absent an intervening cause, as set forth in Section VALE (Force Mgjeore), the period during which no performances of Entertainment Presentations is presented shall not exceed forty-five (45) days. C. Production Assistance Services. The Foundation shall encourage and assist other artists and groups to use the Plaza Theatre to produce and present Entertainment Presentations. Production assistance services provided to other users shall include: operation of the box office and ticket sales; marketing and promotional consultation; and such other services and assistance as may be required to ensure quality presentation and appropriate use of the Plaza Theatre as set forth in this Agreement. The Foundation may charge such other users Co -Production Fees for these services. D. Marketing. The Foundation shall undertake to market the Plaza Theatre Theater for Entertainment Presentations. Section V. Financial A. Financial Responsibility. The Foundation shall be financially responsible for the management and operation of the Plaza Theatre, except as specifically provided in this Agreement. B. Co -Production Fees and Equipment Rental Fees. The Foundation shall have the authority to charge users fees for rental and use of the Plaza Theater, including equipment in the Plaza Theatre, as well as for Production Assistance Services. The Foundation shall retain such rental and co -production fees for its own use. C. Ticket and Concession Prices. The Foundation shall have the authority to fix the prices to be charged for tickets to its Entertainment Presentations and the prices for concession items, including food, beverages and novelties. The Foundation shall retain all revenue generated pursuant to this section. D. Accounting and Financial Records and Reporting. 1. Accounting Records. The Foundation shall, during the term of this Agreement and for a period of three (3) years after its termination, maintain complete and accurate 55575.18100 41838786.1 accounting records and systems, utilizing the standard classification of accounts and Governmental Accounting Standards, and supporting documentation for all revenue generated and operating expenses incurred pursuant to this Agreement. 2. Annual Audit Reports. Not more than 120 days after the close of its fiscal year, the Foundation shall submit to City an audited financial statement prepared by an independent certified public accountant for the previous fiscal year. In addition to the financial statement, the Foundation shall submit an audited supplemental statement that segregates certain operations of the Plaza Theatre from other operations of the Foundation. The segregated operations to appear in the supplemental statement shall include the following: revenues, ticket sales, subscription sales, concession sales, rental fees and co -production fees paid by other users, and direct expenses associated with the operation of the Plaza Theatre, including, utilities, maintenance of the premises, and maintenance of the FF&E. Within 120 days following the termination of this Agreement, a final report shall be submitted to City covering the period between the last report and the termination date. 3. Other Financial Reports. The Foundation shall provide to City, upon reasonable request, written financial and other reports and access to inspect all operational and financial records and data pertaining to the services provided under this Agreement. Section VI. Rights and Obligations of the Parties. A. Covenants By City. City agrees and covenants that during the term of this Agreement: 1. City Costs. City shall pay the actual cost of property insurance, property taxes (if any), possessory interest tax (if any), and costs required to perform its repair obligations as set forth in Exhibit A. City shall have no obligation to pay the cost of any utilities. 2. Exterior Cleaning. City shall be responsible for the regular cleaning of the exterior portions of the Plaza Theatre premises. City shall periodically sweep and clean the sidewalks adjacent to the premises and outside courtyard areas, in order to keep these areas in a clean, safe and neat condition. 3. Repair. City shall be responsible for any and all repairs to the Plaza Theatre premises, including, without limitation, structural repairs, the electrical system, broken windows, underground or in -wall plumbing repairs, repairs to the HVAC system, the roof and any exterior improvements, as set forth in Exhibit A. Foundation agrees that it will not, nor will it authorize any person to go onto the roof of the building without the prior written consent of City. City shall respond, within a reasonable time period, to Foundation's non -emergency requests for repairs. City shall respond 24 hours a day, 7 days a week for emergency repairs to the Plaza Theatre premises. For purposes of this section, "emergency" shall mean a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, or property. 4. Security Video Monitoring and Alarm Systems. City shall connect the Plaza Theatre premises to the City's security video monitoring system for the monitoring of City properties and the City's electronic alarm system. City shall provide the initial response to any SM 55575.18100A1838786.1 alerts or notices produced by the City's electronic alarm system, and shall notify the Foundation (and any Management Firm) of such incidents as quickly as possible. B. Covenants By the Foundation. The Foundation agrees and covenants that during the term of this Agreement: 1. Operating Costs. The Foundation shall pay all costs associated with its occupancy of the Plaza Theatre and its business operations, including performance of the Services required by this Agreement and costs required to perform its maintenance obligations as set forth in Exhibit A. The Foundation (or the Management Firm) shall be responsible to pay the cost of any utilities associated with the Theatre. The Foundation shall keep the Plaza Theatre premises free from any liens arising out of any Services performed, material furnished, or obligation incurred by Foundation or alleged to have been incurred by Foundation. 2. Maintenance. Foundation shall be responsible for the minor cosmetic maintenance of the Plaza Theatre premises, such as vacuuming, window cleaning, mopping, painting, light bulb changes, regular deep cleaning of the premises, and small drywall repairs, as set forth in Exhibit A. 3. City Use of the Plaza Theatre. Foundation agrees to provide the Plaza Theatre facilities to City rent-free for City's uses as outlined below. Use of the Theatre by the City shall include, but not be limited to: (a) City governmental purposes (such as meetings of the City Council, boards/commissions, staff, or personnel testing, town hall meeting or other governmental purpose), (b) City -authorized meetings or events held by other public agencies (such as the Palm Springs Unified School District, Desert Water Agency, or the College of the Desert), (c) meetings or events held by non -profits and which are sponsored by the City (such as the State of the City) (collectively "City Uses"). All requests by City for City Uses shall be subject at all times to availability due to prior confirmed event scheduling for the Plaza Theatre facilities. Use by the City for City Uses shall be rent-free, shall be limited to eighteen (18) event days per year, with this number being subject to modification by the Parties pursuant to Operating Memoranda, as set forth in Section VIII(P), below. Use by of the Theatre for City Uses shall be rent-free, but City shall reimburse the Foundation for any actual and reasonable costs/expenses incurred for labor, equipment, food and beverage, audio-visual or other customary expenses associated with the City Use of the Theatre. Such reimbursement shall be at a reimbursement level that is no higher than the level charged by the Foundation to non-profit entities. 4. Palm Springs International Film Festival Use. As set forth in City Council Resolution 24614, the Palm Springs International Film Society shall be entitled to use the Plaza Theatre during the period of the annual Film Festival during the first two weeks of each January. Nothing in this Agreement shall prevent the Foundation from charging the Society a rental/usage fee, provided that such rental/usage fee is the lowest category of rental/usage fees charged to any other user. The Society's use pursuant to this Section 4 shall not count toward the "City Uses" in Section 3, nor shall the Society's use pursuant to this Section 4 qualify as a "community theater" or amateur production for purposes of Section IV(B)(1) above. 5. Annual Schedule of Presentations. The Foundation understands and acknowledges that City has a civic responsibility to ensure community access to, and effective, 5_ efficient utilization of the Plaza Theatre. Therefore, on or before June 30 of each year, the Foundation shall submit to City for its review and comment, an Annual Schedule of Entertainment Presentations. The Annual Schedule of Presentations shall set forth the various anticipated uses, users and periods of each such use for the Plaza Theatre, for that fiscal year. CITY shall have no right to approve play selection or performance content by reason of its review of the Annual Schedule of Presentations, however City shall have the right to require the Foundation to ensure that adequate periods of time are made available for use, of the Plaza Theatre by other users, as set forth in this Agreement. The Parties recognize that the schedule is subject to change during the course of the period covered by the schedule provided. Any modifications or substitutions to the Annual Schedule of Presentations shall be promptly submitted to City for review and comment prior to implementation of the modification or substitution, or if time does not permit prior review, as soon thereafter as is reasonable and practicable. 6. Annual Marketing Plan. The Foundation shall be responsible for preparing or for causing to be prepared an annual plan approved by City for the marketing of the Plaza Theatre ("Annual Marketing Plan"). The Annual Marketing Plan shall be presented to the City for approval no later than September 30th of each calendar year this Agreement is in effect. 7. Monthly Schedule of Production Bookings. On the first day of each month, the Foundation shall submit to City a current schedule listing each of the confirmed production bookings for that month. 8. Maintenance and Equipment Replacement Schedule. Not later than March 30 of each year, the Foundation shall submit to City, for its approval, proposed schedules for facility maintenance of the Plaza Theatre. 9. Compliance with Law. The Foundation agrees to and shall, at its sole cost and expense, comply and secure compliance with all the requirements of all municipal, state, county and federal authorities now in force, or which may hereafter be in force, pertaining to the Plaza Theatre, or the operations conducted therein, and shall faithfully observe, and secure observance with, in the use of the Plaza Theatre, all municipal ordinances and state and federal statutes now in force or which may hereafter be in force. This obligation expressly includes but is not limited to compliance with any and all obligations under the Americans With Disabilities Act of 1990 ("ADA") with regard to operation and maintenance of the Plaza Theatre, but shall not include capital improvements required under ADA, provided that City as owner of the Plaza Theatre, shall be responsible for compliance with all ADA obligations for which the owners of premises are responsible under the law. Foundation 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. If Foundation performs any "maintenance" with regard to the Plaza Theatre premises, and if the total compensation is more than 515,000 or more, Foundation agrees to fully comply with such Prevailing Wage Laws, if applicable. Foundation shall defend, indemnify and hold the City, its elected 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 is the intent of the Parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Foundation shall therefore comply with such Labor Code sections to fullest extent required by law. _6_ 55575. 19100`41838786.1 It shall be mandatory upon the Foundation and all of Foundation's contractors to comply with all California Labor Code provisions, which include, but are not limited to prevailing wages, employment of apprentices. hours of labor and debarment of contractors and subcontractors. 10, Non -Discrimination. The Foundation shall not discriminate on the basis of actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation as these terms are defined by California Law, or association with members of classes protected under section 7.09.040 of the Palm Springs Municipal Code or in retaliation for opposition to any practices forbidden under that Section, against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, operated by the Foundation, and the Foundation shall include a similar provision in all contracts entered into pursuant to this Agreement. It. Eoual Opportunity. The Foundation acknowledges that City seeks to promote employment and business opportunities for local residents and firms on all City contracts and use of the Plaza Theatre. The Foundation will, to the extent legally possible, solicit applications for employment, and bids and proposals for subcontracts, for work associated with this Agreement from local residents and firms as opportunities occur. The Foundation agrees to hire qualified local residents and fines whenever feasible. 12. Insurance. The Foundation shall procure and maintain, at its sole cost and expense, insurance as set forth in Exhibit B. The types, amounts of coverage may be modified by mutual agreement of the Parties, by way of Operating Memoranda, from time to time, based on the nature of the activities being undertaken. 13. Security/ Incident Reports. The Foundation shall be responsible for providing event security, in accordance with sound theatre management practices, which shall include coordination with the City's Special Events Planning Team (SEPT) for events that occur outdoors or larger than normal events. In the event any incident occurs at the Plaza Theatre, involving a guest, invitee or patron and that is reasonably likely to result in a claim for damages for personal injury and/or property damage or loss, or involves a breach of security at the Plaza Theatre, the Foundation shall prepare and deliver to City, within 24 hours of the incident, a detailed report of the facts and circumstances surrounding the incident, including the names and addresses of the persons involved in, or witnessing, the incident. Section VIL Termination. A. Termination due to Funding Reduction. The Foundation understands that the continuance of this Agreement is contingent upon continued funding from the City of Palm Springs, at an adequate level for all of City's operating expenses. City promises to use its best efforts to secure the necessary funding; however, if funding is substantially reduced Parties shall enter into exclusive negotiations, for a ninety (90) day period from the effective date of notice of the funding reduction or elimination, to modify the terms and conditions of this Agreement consistent with the available funding. During this period, the Foundation may continue to use the Plaza Theatre under the terms and conditions of this Agreement, provided it assumes all financial obligations required for operation of the Plaza Theatre operation, to the extent such costs exceed 55575. 181W41838786.1 funds available to City. In the event the Parties are unable to reach agreement on modified terms, this Agreement shall terminate at the earliest possible date, but not more than ninety (90) days following the expiration of the negotiation period. In the event funding from the City of Palm Springs is terminated, this Agreement shall terminate effective the date such funding ceases. B. Termination For Cause. In the event either Party commits a breach of this agreement, the non -breaching Party may terminate this agreement by first giving written notice to the breaching Party specifying the default(s) and demanding cure of the default(s) within a commercially reasonable time. Should the Foundation, during the term of this Agreement, make any assignment for the benefit of its creditors, or voluntarily or involuntarily be declared bankrupt or file for protection under any chapter of the Bankruptcy Act, or if a receiver or liquidator shall be appointed to administer the Foundation's affairs, such action by the Foundation shall be a material breach of this Agreement, City shall give notice of such breach to the Foundation and provide a commercially reasonable time for the Foundation to cure such default. If the default(s) is not cured by the defaulting Parry within the stated period, this Agreement may be terminated by the non -breaching Party with a written notice of termination stating an effective date of not less than ninety (90) days from the date of the notice. If the breaching Party cures the default(s) following notice of termination but prior to the effective date, the non -breaching Parry may, in its sole and absolute discretion and in writing, waive the notice of termination in which event this Agreement shall be reinstated. C. Rights and Obligations Upon Termination. On the effective date of termination of this Agreement, the Foundation shall provide to City the following: 1) a list of any events scheduled in the Plaza Theatre following the effective date of termination and copies of all signed contracts for such events; 2) an inventory and possession of all furniture, fixtures and equipment (FF&E) belonging to City; 3) documentation, acceptable to City, that there are no outstanding and unpaid bills for utilities or other expenses payable by the Foundation under this Agreement. Section VUL General Provisions. A. Mutual Indemnification. Except as otherwise provided herein, each Party shall indemnify and hold harmless the other Party, its officials, directors, officers, agents, employees, representatives and subcontractors, and defend against all claims, damages, losses and expenses, including attorneys' fees, arising out of or resulting from the performance of their respective duties and obligations specified herein, caused by the negligence, omission or willful act of the Parry, its agents, employees, representatives and sub -contractors. B. Dispute Resolution. Prior to initiating litigation to enforce or interpret this Agreement, the Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiation as follows: 1. Negotiations Between Senior Executives/Representatives. Either Party may initiate negotiations by written request to the other Parry setting forth the particulars of the dispute, the terms of the Agreement involved in the dispute, and a suggested resolution. Within ten (10) days following the request, senior managers or representatives of each Party (i.e., the Chief Executive Officer of the Foundation and the City Manager of the City), shall meet to attempt a resolution of the dispute. The Parties shall continue to meet and attempt resolution until such time 55575.18100'41838786.1 as either Party determines a resolution is not possible. Upon such determination, written notice shall be given to the other Parry terminating dispute resolution. 2. Continued Performance During Dispute Resolution. The Parties shall continue performance of their respective obligations in accordance with this Agreement during the resolution of any dispute. C. Independent Contractor Status. In the performance of its obligations under this Agreement, the Foundation shall be an independent contractor and not an agent of City. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Foundation, its agents or employees perform the services required herein, except as otherwise set forth herein. Foundation 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. Employees or contractors of Foundation are not City employees, and employees of City are not employees or contractors of Foundation. Neither Parry shall at any time or in any manner represent that it or any of its agents or employees are agents or employees of the other Parry. Each Parry shall be solely responsible for compliance with State and Federal Law with respect to the wages, hours, benefits, and working conditions of its employees, including requirement for payroll deductions for taxes. D. Access to The Plaza Theatre. The Foundation agrees that City and its designees shall have the right to enter the Plaza Theatre during reasonable business hours, with or without prior notice, and in the event of an emergency situation, at any time. This right of access does not, and is not intended to, grant City or its representatives or designees the right of access during or for a Entertainment Presentation for which admission is charged, without a paid ticket for admission, except in an emergency situation. E. Force Maieure. The obligation of any party to perform any acts hereunder shall be suspended during the period such performance is prevented by acts of God; war; riot; invasion; fire; accident; strike or walkout; government interference, regulation, appropriation, or rationing; or, by inability to secure goods or provide services because of the foregoing conditions. The obligation(s) shall resume upon cessation of the condition of Force Majeure. F. Notices. Any notice required herein shall be deemed to have been sufficiently given when sent by certified, registered mail, postage prepaid, or by electronic mail or facsimile, addressed to: To City, addressed to: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager Facsimile: (760) 323-8207 Citv.Manager(a)palmspringsca.� With a copy to: City of Palm Springs 3200 E. Tahquitz Canyon Way -9- 55575.1810041838786.1 Palm Springs, CA 92262 Attn: City Attorney Facsimile: (760) 322-8317 C itv. Attomev(a)palmsori ngsca.gov or to the Foundation, addressed to: Palm Springs Plaza Theatre Foundation 1775 E. Palm Canyon Dr. Suite 110-1028 Palm Springs, CA 92262 Attn: Chairperson Email: jr66(a?mac.com and said notice shall be deemed communicated when personally delivered, sent by electronic mail or facsimile with documentation of successful transmission, or on the fourteenth (14th) calendar day following mailing by first class certified U.S. Mail, postage prepaid. G. Assignment. The Foundation shall not assign this Agreement or any rights accruing hereunder, except with the prior written permission of the City. The Foundation shall have the right to retain, hire and contract with third parties to perform operational and maintenance services required of the Foundation, subject to City's prior written approval, which shall not be unreasonably withheld. H. Amendment. No amendment of this Agreement shall be valid or binding on the Parties unless made in writing and signed on behalf of each Party by a duly authorized representative. I. Sing lar. Plural, and Gender. As used herein, the singular shall include the plural and the masculine shall include the feminine or neuter. J. Headings. All section and paragraph headings are for reference and convenience only and do not alter, amend, explain, interpret or otherwise affect the terms and conditions of this Agreement. K. Applicable Law. This agreement is made and entered into in the State of California and shall be governed, interpreted and enforced in accordance with the laws of the State of California. L. Attorneys' Fees. The prevailing Party in any legal action, including binding arbitration, brought to enforce or interpret any provisions of this Agreement, shall be entitled to an award of reasonable attorneys' fees against the other party, which fees may be set in the same action or a separate action brought for that purpose. M. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the matters herein, and prior agreements, promises, statements or negotiations not expressly set forth herein are of no force or effect, with the exception of that certain Memorandum of Understanding by and between the City and the Foundation, as amended, - 10- 55575.1 R I00 41839786.1 and that certain document entitled "David Lee Gift to The Palm Springs Plaza Theatre Foundation Binding Term Sheet", dated April 7, 2022. N. Partial Invalidity. If any term or provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining terns herein shall be unaffected and remain in full force and effect. O. Incorporation of Exhibits. The Exhibits attached hereto are hereby expressly incorporated by reference by the Parties into this Agreement, as though fully set forth herein. P. Oneratin¢ Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Foundation, and the operation of the Theatre hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of City and Foundation. If and when, from time to time, during the term of this Agreement, City and Foundation agree that such clarifications are necessary or appropriate, City and Foundation shall be authorized to effectuate such clarifications through Operating Memoranda approved in writing by the City Manager and Foundation, which, after execution, shall become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Foundation. No such Operating Memorandum shall be in conflict with this Agreement. The City Manager, in consultation with the City Attorney, shall make the determination on behalf of City whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section VIII:H above. The City Manager shall be authorized to execute any Operating Memoranda hereunder on behalf of City. Notwithstanding the foregoing, nothing contained in this paragraph shall prevent the City Manager from bringing an issue of clarification before the City Council for the City Council's determination. Q. Counterparts. This Agreement may be executed in one or more counterparts, including with electronic signatures, and each of such counterparts, for all purposes, shall be deemed to be an original, but all of such counterparts together shall constitute but one and the same instrument, binding upon the parties, notwithstanding that all of the parties may not have executed the same counterpart. IN WITNESS WHEREOF, this Agreement is executed by the Parties on the date(s) set forth below. 55575.18100'41838786.1 By: pi-4 Vila Date: _ By: Brenda Pree, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER LLP 0 S. EXHIBIT A RESPONSIBILITY FOR MAINTENANCE AND REPAIRS SYSTEM/AREA CITY FOUNDATION RESPONSIBILITIES RESPONSIBILITIES ELECTRICAL/LIGHTING & POWER EMERGENCY POWER SYSTEM HEATING AND VENTILATION, PUMPS, BOILERS AND FILERS SYSTEM, AIR HANDLERS AND HEATING CONTROLS PLUMPING, SEWER, WATER PAINTING Wiring, conduit, breakers, light fixtures. Replace lamps, switch outlet plats, outlets and fixture lenses. All exterior lighting including lamps, fixed security & safety lights. Central Circuit Repair parts None. and/or system wiring/conduit, etc. Periodic operational check- out. All except filter/strainer changes and daily/weekly operational checks. Including ducts, air handlers, etc. Broken pipes, valves within system. Clean sewer outside of building. Plumbing fixtures excluding those listed under REP's responsibilities. Repair and preventive maintenance duties in the public restroom. All exterior, including tough up after vandalism. INDOORS/HARDWARE/LOCKS Repair and maintain all WINDOWS/FRONT DOORS GLASS/ALARM SYSTEM doors in public domain. Replace glass in doors. Replace/repair windows and glass in exterior Exhibit A 55575.191 W 41838786.1 Report problems to City staff. All -except broken pipes and valves within system and clearing sewer outside of building. Repair and maintain all plumbing in concession, green and dressing room areas. All interior walls. Report problems to City staff. Cleaning of glass in doors and windows. Replace glass if responsible for SYSTEM/AREA CITY FOUNDATION RESPONSIBILITIES RESPONSIBILITIES windows. Maintain alarm breakage. Clean metal systems. fixtures- DOORS/GATES Replace doors and gates. Cleaning of doors and Replace/repair windows gates. and glass in doors and gates. Maintain alarm systems in doors/gates. FIRE SUPPRESSION SYSTEM, Maintain and repair fire Preventive maintenance. INCLUDING ALARM suppression and alarm Report any problems to system throughout City staff. building. FLOOR COVERING Replace worn carpeting. Professional cleaning as Quarterly professional needed. Custodial car and cleaning. repair/maintain flooring in non-public areas. Spot clean carpet as needed. DISPLAYS Replace damage and Install and operate irreparable letters and sign displays. Custodial care of structure. displays. ELEVATORS — PASSENGER None Report problems to City staff. TRASH COMPACTOR All except routing Report problems to City inspection. staff. PEST CONTROL Extermination for termites, Report problems to City bees, pests and other staff. vermin in and around structure. SEATING (Stage/Space) SOUND SYSTEM Replace worn damaged or Repair, clean and provide irreparable seats. preventative maintenance. Replace worn, damages. and irreparable sound equipment. All repairs that must be performed out of house. (Except for damage Exhibit A 55575. 18100 W 1838786.1 Repair, clean and provide preventative maintenance_ SYSTEM/AREA STATE SETS (Lighting & Sound Grids, Stages, Curtains, Scrims, Catwalk and acoustics, Genie lift, etc.) OFFICE FURNITURE & EQUIPMENT THEATRE LIGHTING GENERAL HOUSEKEEPING DUTIES NON PUBLIC AREAS (Backstage production areas, dressing room, green room, storage rooms, sound & lighting control rooms, and concession, Foundation office areas.) CITY FOUNDATION RESPONSIBILITIES RESPONSIBILITIES caused by the negligence of the Foundation). Repair Genie Lift, if out of All minor repairs, cleaning house repairs are needed. (Except for damage caused by the negligence of the Foundation). Replace worn and irreparable items. Replace worn, damages, and irreparable lighting equipment. All repair performed out of house. (Except for damage caused by Foundation's negligence). and provide preventative maintenance, except major repairs to Genie Lift. Minor in-house repair and cleaning. Preventative maintenance. Repair, clean and provide preventative maintenance. None Clean, disinfect and keep in a sanitary manner all office, storage, working areas (front and stage), restrooms, and concession areas. Including those in the public domain All problems structural, mechanical or electrical, involving systems initially installed. Exhibit A 55575. 18100`41838786.1 Cleaning, minor repairs and preventative maintenance of all ceiling tiles, walls, flooring, mirrors, wiring and other equipment and fixtures initially installed. Clean, disinfect and keep in a sanitary manner EXHIBIT B REQUIRED INSURANCE 1. Insurance. a. Insurance To Be Maintained By Foundation. Foundation shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the Term 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 Foundation's performance of the Services and related work under this Agreement, including Foundation's agents, representatives, or employees. In the event the City Manager determines that the work or Services creates an increased or decreased risk of loss to the City, Foundation agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager. Foundation shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. If any insurance is written on a claims -made basis, such insurance shall be maintained for a minimum of three (3) years subsequent to the expiration of this Agreement, or a three (3) year extended reporting period endorsement shall be purchased. The minimum amount of insurance required shall he as follows: (1) Workers' Compensation. To the extent required by California law, Foundation 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, in compliance with all other statutory requirements, as required by the State of California. Foundation agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and shall endeavor to use commercially reasonable efforts to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. (2) Crime Fidelity Coverage. At least $100,000.00 per occurrence of coverage for (i) Foundation employee dishonesty; (ii) forgery or alteration; (iii) theft, disappearance and destruction inside and outside the Theatre; and (iv) robbery and safe burglary inside and outside the Theatre. (3) Commercial General Liability. Foundation shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least four million dollars ($4,000,000.00) for bodily injury and property damage including coverages for contractual liability, Exhibit A 55575.1810041838786.1 personal injury, independent contractors, broad form property damage, products and completed operations. Any combination of primary and umbrella liability policies shall satisfy this requirement. (4) Employer's Liability Coverage. Foundation shall obtain and maintain, in Lull force and effect throughout the Term of this Agreement, a policy of employer's 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. b. 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, such approval not to be unreasonably withheld. Foundation guarantees payment of all deductibles and self -insured retentions. C. Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Foundation under this Agreement: (1) For any claims related to this Agreement, except for Crime and Workers' Compensation/Employer's Liability, Foundation'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 Foundation's insurance and shall not contribute with it. (2) Commercial General Liability insurance coverage and limits provided by Foundation 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. (3) Foundation agrees to require its commercial auto liability, commercial general liability and workers' compensation insurers to provide a notice of cancellation to the City Manager. Regarding all other insurance policies, Foundation agrees to provide the City Manager with thirty (30) days' notice of cancellation, except for ten (10) days' notice of cancellation for non-payment of premium. It is Foundation's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. (4) Foundation agrees to endeavor to ensure, if commercially reasonable, that subcontractors, and any other parties involved with Exhibit A 55575.1810041838786.1 the scope of Management Services and related Work provided pursuant to this Agreement, who are brought onto or involved by Foundation, provide the same minimum insurance coverage required of Foundation. Foundation 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. Foundation agrees that upon request, all agreements with subcontractors and others engaged in the performance of services hereunder this Agreement will be submitted to the City for review. (5) Foundation acknowledges and agrees that any actual or alleged failure on the part of the City to inform Foundation 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) Foundation 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 prior to the policy expiration and/or renewal date. (7) 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. (8) 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. (9) Foundation agrees to provide immediate notice to City of any claim or loss against Foundation arising out of the Services and related work performed under this Agreement and for any other claim or loss that 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. Exhibit A 55575. 18100'd 1838786.1 (10) Foundation agrees that the provisions of this Exhibit shall not be construed as limiting in any way the extent to which the Foundation may be held responsible for the payment of damages resulting from Foundation's activities or the activities of any person or person for which Foundation is otherwise responsible. d. 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 A-, VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. e. Verification of Coverage. Foundation 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 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 Management Services commence. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: (1) "The City of Palm Springs, its qfflcials, employees, and agents are named as an additional insured..." C'as respects City of Palm Springs Contract Na" or' for any and all work performed with the City" may be included in this statement) for General and Auto Liability policies. (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) for General and Auto Liability policies. (3) "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 calendar days written notice to the Certificate Holder named." (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 in writing by the City before Management Services commence. All certificates of insurance must be authorized by a person with authority to bind coverage, whether Exhibit A 55575.18100'41838786.1 that is the authorized agentibroker or insurance underwriter. Failure to obtain the required documents prior to the commencement of Services shall not waive Foundation's obligation to provide them. Exhibit A 55575. 1810041838786.1