HomeMy WebLinkAbout1/24/2018 - STAFF REPORTS - 1.D. PALM S
A4�y
h �
V N
k p f
OWAT a
°q`,FOR` CITY COUNCIL STAFF REPORT
Date: January 24, 2018 CONSENT CALENDAR
Subject: APPROVAL OF A FACILITY USE AGREEMENT WITH PALM SPRINGS
POWER BASEBALL CLUB FOR THE PALM SPRINGS STADIUM
From: David H. Ready, City Manager
Initiated By: Marcus L. Fuller, Assistant City Manager
SUMMARY
Approval of the Facility Use Agreement with Palm Springs Power Baseball Club, Inc.,
will allow for the use of the Palm Springs Stadium for the limited term of January 22
through July 31, 2018, subject to the terms and conditions identified in the agreement.
RECOMMENDATION:
1. Approve Agreement No. , a Facility Use Agreement with Palm Springs Power
Baseball Club, Inc., a California corporation, for rental and use of the Palm Springs
Stadium for a limited term of January 22, 2018, through July 31, 2018; and
2. Authorize the City Manager to execute all documents.
BUSINESS PRINCIPAL DISCLOSURE:
A search of records available through the Secretary of State of California shows that as
of August 28, 2017, Palm Springs Power Baseball Club, Inc., is a California corporation
with the following corporate officer: Andrew Starke (CEO/Secretary/CFO), with Andrew
Starke listed as the only Director, and is 100% owner of it.
STAFF ANALYSIS:
In 2003, the City solicited proposals for use of the Palm Springs Stadium, and received
a proposal from Andrew Starke, principal of Palm Springs Power Baseball Club, Inc.,
(hereafter "PSP Baseball'). PSP Baseball proposed to bring collegiate teams from
Nevada, Arizona, and California to play Palm Springs Power, the Palm Springs team, at
the Palm Springs Stadium.
ITEM NO,
City Council Staff Report
January 24, 2018-- Page 2
Palm Springs Power Baseball
Facility Use Agreement
On February 15, 2004, the City Council approved a License Agreement with PSP
Baseball for use of the Palm Springs Stadium.
PS Baseball has successfully coordinated its collegiate baseball program at Palm
Springs Stadium since 2004, and City Council extended the License Agreement on
December 1, 2010, for a period of 7 years, terminating on December 1, 2017.
Staff has continued negotiations with PSP Baseball on the terms and conditions of a
new Facility Use Agreement, and recommends the Council approve a limited term
extension through July 31, 2018, to allow staff time to continue negotiations. The
conditions of the limited term extension are consistent with the prior License Agreement,
with the following changes:
• City Use: City has reserved use of Palm Springs Stadium for the following specific
periods of time:
➢ Martin Luther King Weekend (Saturday — Monday) for use by the Men's Senior
Baseball League;
➢ Library — Family Fun Fest (Wednesday, March 28, 2018);
➢ Memorial Weekend (Saturday — Monday) for use by the San Diego Youth
Baseball League;
➢ Fourth of July Fireworks Event (partnered with PSP Baseball, with PSP Baseball
holding its All American July 4th Game prior to the Fireworks Event)
• Rent: $1,000 per month, with January prorated at $250; total rental fee is $6,250
ENVIRONMENTAL IMPACT:
The requested City Council action is not a "Project" as defined by the California
Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a "Project" means the
whole of an action, which has a potential for resulting in either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in the
environment. The requested action is exempt from CEQA pursuant to Section
15378(b)(5) Organizational or administrative activities of governments that will not result
in direct or indirect physical changes in the environment.
FISCAL IMPACT:
The Facility Use Agreement will generate revenue in the amount of $6,250 for use of
the Palm Springs Stadium, in addition to reimbursement of actual utility costs for
electricity and natural gas usage (PSP Baseball paid the City $15,532 in utility costs the
prior year).
02
City Council Staff Report
January 24, 2018— Page 3
Palm Springs Power Baseball
Facility Use Agreement
In the prior year, the City incurred $13,902 in facility maintenance and repair costs, and
pays its landscape maintenance contractor a fixed price of $12,599 annually to maintain
the turf within Palm Springs Stadium. In the last year, the electronic scoreboard required
replacement of its electrical system at a cost of $9,000. Finally, the City's direct cost for
preparing the in-field of Palm Springs Stadium is $3,516. The City's total cost related to
Palm Springs Stadium in the last year was $39,017.
SUBMITTED
Marcus L. Fuller, MPA, P.E., P.L.S. David H. Ready, Esq.,
Assistant City Manager City Manager
Attachment: Facility Use Agreement
03
Attachment 1
44
FACILITIES USE AGREEMENT
This Facilities Use Agreement("Agreement') is made and entered into this day of
, 2018, by and between the CITY OF PALM SPRINGS ("City"), a
California charter city and municipal corporation, and PALM SPRINGS POWER
BASEBALL CLUB, INC., ("PSP"), a California corporation.
RECITALS
A. City and PSP are mutually interested in and concerned with providing quality
recreational activities for the citizens of Palm Springs.
B. It is recognized that through a cooperative agreement between the City and
PSP for the use of the Palm Springs Stadium and related facilities, (hereinafter
the "Stadium"), the community and the residents of Palm Springs will enjoy
additional recreational opportunities.
NOW, THEREFORE, the City and PSP do hereby mutually agree as follows:
1A. INTENT OF AGREEMENT
1 A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP
in their cooperative effort to effectively promote and provide an instructional league
for Minor and Independent League professional players and competitive collegiate-
level baseball entertainment for residents and visiting youth and adults at the
Stadium.
1A.2 It is the intent of this Agreement to solidify a supportive and working relationship
between PSP and the City.
1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct
their efforts toward the development of quality baseball programs at the Stadium.
1 B. GRANT OF NON-EXCLUSIVE USE
1B.1 The City grants PSP the nonexclusive use of the Stadium located at 1901 East
Baristo Road, Palm Springs, California, subject to the terms and conditions more
particularly set forth in this Agreement.
1B.2 PSP shall have the exclusive use of the offices, locker rooms and concession
located at the Stadium subject to the terms and conditions more particularly set
form below.
1 B.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all
baseball games held for or on behalf of PSP during the term of this Agreement.
Page 1 of 23 C 5
I B.4 PSP shall have the exclusive use of the entire Stadium for the following specific
periods of time:
a) approximately twenty-five(25)dates of the instructional league,for the California
Winter League, extending from January 22, 2018, through February 18, 2018;
and
b) approximately fifty-four (54) dates of the Palm Springs Youth Academy
practices, on Mondays and Thursdays, extending from January 22, 2018,
through July 31, 2018; and
c) approximately forty-five(45)home games of the collegiate all-star baseball team
owned by PSP, known as the Palm Springs Power("Team"),during the baseball
season for the Southern California Collegiate League, extending from May 29,
2018, through July 31, 2018;
d) a maximum of three tournaments hosted by the Team.
Exclusive use of the Stadium for these purposes shall commence at 6:00 a.m. on
the date of such home game or tournament and ending three (3) hours after the
completion of each home game or, for a tournament, last game of the day. PSP
shall notify the City as soon as practicable of the dates of the home games for the
Team and any tournaments to be hosted by the Team, at which time an updated
Exhibit "A", Calendar Schedule, will be prepared by the City and provided back to
PSP. PSP may request additional use of the Stadium for events other than
baseball; however, City does not guarantee availability of the Stadium for any
additional use not already authorized under this Agreement, per attached Exhibit
"A", Calendar Schedule. ..
The City reserves for itself the exclusive use of the Stadium for the following periods
of time:
1) Martin Luther King Weekend (Saturday— Monday) for use by the Men's Senior
Baseball League;
2) Library— Family Fun Fest (Wednesday, March 28, 2018);
3) Memorial Weekend (Saturday — Monday) for use by the San Diego Youth
Baseball League; and
4) Fourth of July Fireworks Event (partnered with PSP, with PSP holding its All
American July 4th Game prior to the Fireworks Event)
PSP may have non-exclusive use of the Stadium at all other periods of time, subject
to advance notice to the City. City reserves the right to designate use of the Stadium
during periods of non-exclusive use upon notice to PSP, and provided PSP has not
Page 2 of 23 C 6
previously notified City of its intended use at the same period of time.
1 B.5 For the period commencing with the first home game of the Team and ending with
the last home game of the Team, or the last tournament to be hosted by the Team,
whichever is later, PSP shall have the exclusive right to use the locker rooms
located at the Stadium.
1 B.6 During the term of this Agreement, PSP shall remain a member in good standing of
the Southern California Collegiate League and the California Winter League, or
such other leagues as approved by the City.
1 B.7 Within five(5)days of the last home game of the Season (including any tournament
hosted by the Team), PSP shall vacate and surrender all areas of the Stadium,
except for the offices and interior storage rooms, unless PSP has previously notified
City of its intended non-exclusive use of the Stadium commencing upon the end of
Season or of any tournament, to which City has approved such use.
PSP's schedule shall take precedence in all scheduling of the Stadium.
Nevertheless, the City shall have the right to grant third parties the right to use all or
any part of the Stadium at such times that will not conflict with the terms of this
Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for
use of the Stadium by community and youth organizations during the baseball
season. Contract Officer shall give PSP notice of other events to be conducted at
the Stadium within seventy-two (72) hours of booking such an event.
1 B.8 Unless PSP has obtained City's prior approval for continued non-exclusive use of
the Stadium for the period extending from the end of California Winter League
Season and the start of the Southern California Collegiate League, City shall
relinquish the Stadium to PSP one week prior to opening Day for the summer
season. However, the field can still be rented out by the City for other baseball
events if PSP is not using the field.
PSP shall relinquish the Stadium to the City on July 31, 2018.
2. AREAS OF RESPONSIBILITY
2.1 Use
2.1.1 City and PSP shall conduct a walk-thru of the Stadium to verify the condition
prior to PSP taking possession. Upon PSP relinquishing Stadium to City,any
damage or cleaning requirements, as determined at the sole discretion of
City, shall be satisfied by PSP.
2.1.2 PSP shall exercise this Agreement solely for the management of the Team,
the playing of home games by the Team, the hosting of tournaments by the
Team, and the sale of concessions during home games, and the promotion
Page 3 of 23 7
of City-approved events in addition to baseball. On the date of each home
game or tournament game, PSP shall be responsible for turning on and off
the field lights prior to and after the game. In addition, PSP shall be
responsible for procuring parking attendants and adequate security
personnel, as reasonably deemed necessary by the City,for each game.The
City shall stock and clean all exterior restroom prior to each game day, and
PSP shall pay City $50 per game day for this service. PSP shall be
responsible for any necessary restocking or cleaning of restrooms during an
event. At the end of each day on which a game is played, PSP shall be
responsible for ensuring that all trash cans at the Stadium are emptied and
that all litter throughout the Stadium has been collected and properly
disposed of.
2.1.3 PSP shall not use or permit to be used the Stadium or any part thereof for
any purpose or purposes other than the express purpose or purposes for
which the Stadium is hereby rented to PSP. In addition,this Agreement does
allow PSP to use the Cerritos Field for baseball activities when requested
and granted by the City. PSP shall not sell or permit to be kept, used,
displayed, or sold in or about the Stadium (a) any article that may be
prohibited by standard forms of fire insurance policies or (b) any alcoholic
beverages unless expressly approved in advance by the Contract Officer.
2.1.4 PSP shall have complete responsibility for the control and supervision of its
staff members and invitees with respect to purchases from the concession
stand, use of the Stadium, and use of the concession stand and concession
stand equipment.
2.1.5 PSP shall be responsible for the control and safety of its staff, members and
guests while PSP, its staff, members and guests use the Stadium.
2.1.6 PSP shall not engage in any activity on or about the Stadium that violates
any environmental law and shall promptly, at PSP's sole cost and expense,
take all investigatory and/or remedial action required or ordered by any
governmental agency or environmental law for cleanup and removal of any
contamination involving any hazardous material created or caused directly or
indirectly by PSP.The term "environmental law"shall mean anyfederal, state
or local law, statute, ordinance or regulation pertaining to health, industrial
hygiene or the environmental conditions on, under or about the Stadium, as
such laws are amended, and the regulations and administrative codes
applicable thereto.The term "hazardous material"includes,without limitation,
any material or substance that is(i)defined or listed as a "hazardous waste",
"hazardous substance" or considered a waste, condition of pollution or
nuisance under the environmental laws; (ii)petroleum or petroleum products
or fractions thereof; (iii)asbestos; and/or(iv)substances known by the State
of California to cause cancer and/or reproductive toxicity. PSP shall provide
prompt written notice to the Contract Officer of the existence of hazardous
Page 4 of 23 08
substances at the Stadium and any notices of violation of environmental laws
received by PSP.
2.2 Concessions and Ticket Sales
2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty,
program, refreshment, and concession facilities within the Stadium during
home games and tournaments hosted by the Team. PSP shall serve and
provide for the sale of such items of food, drink, and goods as are normally
served by concessionaires in baseball stadiums, including,without limitation,
souvenirs, programs, seat cushions, baseball caps and batting helmets. The
City reserves the right to retain concessions for City-sponsored events or any
third party events.
2.2.2 All rates charged for admission to the Stadium for home games and
tournament games and for the sale of concessions shall be uniform, except
that PSP shall provide discounted admission pricesfor children undertwelve
(12), students and adults over sixty-five(65)years of age, and subject to the
prior approval of the Contract Officer, which approval shall not be
unreasonably withheld.The standard used by the Contract Officer to approve
or disapprove rates and prices shall be the prevailing market rate for such
items and services. The Contract Officer shall have access to and the right to
inspect the schedule of prices and rates charged for admission to the
Stadium and concessions and, in the event that after PSP has been advised
and given a reasonable opportunity to confer with the Contract Officer and
justify the prices then in effect, if the Contract Officer determines that any
price or prices are unreasonable or inappropriate,the same shall be modified
as directed by the Contract Officer. PSP shall display all prices at the point of
sale for all admission and concessions conspicuously on signs approved by
the Contract Officer.
All rates for the sale of tickets and concession items are to be submitted to
the Contract Officer for approval prior to any promotion or publication of said
rates.
2.3. Advertising
2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield
fence of the Stadium at locations approved in advance by the Contract
Officer. All revenue received from such advertising shall be paid to PSP.
Outfield advertising shall be removed upon termination of the Agreement.
Any damage caused by PSP through the installation or removal of
advertising signs shall be immediately repaired by PSP at no cost to the City.
Such advertising shall be subject to the approval of the Contract Officer,
which approval shall not be unreasonably withheld. The City reserves the
right to temporarily cover advertising signs during special events and/or
Page 5 of 23 C. 9
rentals of the Stadium by third parties. PSP shall promote the Stadium and
its Team in consultation with the City's Department of Tourism.The City shall
be named in all advertising. For promotional purposes, PSP shall include
reference to the City in all paid media (advertising), publications and signs.
The City shall be identified on a credit line prominently presented on the
PSP's website page. There shall be a hyperlink from the PSP's website to
the City's website at wwwpalmspringsca.gov. The parties agree that said link
may be framed whereby material or pages from the linked website appear in
a frame on the site which creates the link. The parties expressly recognize
their individual obligations and responsibilities for the content, quality,
accuracy or completeness of materials contained on their respective
websites and agree to hold each other harmless from any special, indirect,
incidental or consequential damages that may arise from the use of or the
inability to use the respective sites and/or the materials contained on either
site whether the materials contained on the site are provided by the City or
PSP.
2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising. An
example of advertising includes, but is not limited to, receiving space to place
one(1)full-page four-color advertisement on the inside of the PSP's official
program for marketing and promotion purposes.
2.4 Repairs and Maintenance
2.4.1 PSP shall, at its sole cost and expense and subject to the City's obligations
more particularly set forth below, keep and maintain the Stadium and the
adjacent parking facilities, sidewalks and landscaping in a good, neat, clean
and orderly condition and state of repair, including, but not limited to,
cleaning the Stadium and removing all debris and litter from the Stadium
after each home game and tournament game. By entering into the Stadium,
PSP shall be deemed to have accepted the Stadium as being in a good,
neat, clean and orderly condition. PSP agrees that upon the surrender of any
portion of the Stadium to the City, the Stadium shall be surrendered in the
same condition as when received and in a good, clean and sanitary
condition, reasonable use and wear thereof and damage by fire, act of God
or by the elements excepted.
2.4.2 The City hereby agrees to mow, water, seed and otherwise maintain the
playing field of the Stadium in a condition satisfactory to conduct
independent league baseball games, provided that PSP shall be responsible
for preparation of the infield for all home games and tournament games. The
City shall also maintain the playing field lights in a good condition and repair,
including, but not limited to, replacing bulbs and fixtures as needed, on a
timely basis, to be operable at the time of all home games and tournament
games. The City shall also maintain all electrical repairs, structural repairs,
and overall maintenance of the Stadium. The City shall be responsible for
Page 6 of 23 10
cleaning the Stadium to a good, neat, clean and orderly condition after third-
party events and prior to the start of each baseball season no later than three
(3) days prior to relinquishing the Stadium to PSP of each year.
All landscape maintenance requests or issues shall be directed to the
Contract Officer. PSP shall not contact the landscape maintenance
contractor directly.
2.5 Utilities
2.5.1 The City shall provide and maintain water for the Stadium at the City's sole
expense.
2.5.2 PSP will be responsible for 100% of all electrical costs incurred for the
Stadium offices, locker rooms, outfield lights, and concessions, utilizing the
existing meters at the Stadium to track PSP's electrical usage for the air
conditioning (A/C), the interior lights and outlets for the Stadium, the outfield
lights, and the concession stand. Should the Stadium be used for events not
affiliated with PSP, PSP will not be responsible for the electrical costs for
such events.
2.5.3 PSP will be responsible for the gas costs for the Stadium, which is also
metered.
2.5.4 PSP hereby waives, discharges, and holds harmless the City, its elected and
appointed offices, employees and agents, for any and all claims it may now
or in the future have against the City for any losses or damages sustained by
PSP by reason of any defect, deficiency or impairment in the provision of
utilities to the Stadium.
2.5.4 Payment for electrical and gas costs shall be made directly to the City and
will be due within ten (10) days of the date billed. If payment is not received
within ten (10)days of its due date, a late charge will be applied pursuant to
Section 3.6 of this Agreement.
2.5.6 If a PSP game must be cancelled due to a Stadium malfunction, such as the
lights not working or the sprinklers not turning off, and the City is unable to
provide PSP with notice at least 24 hours prior to a scheduled game, PSP
will receive a one thousand dollar ($1,000) electrical credit from the City.
2.6 Alterations and Fixtures
PSP shall not make or suffer to be made any alterations to the Stadium, or any part
thereof, or change the appearance of the Stadium without the prior written consent of the
Contract Officer,and any alterations to the Stadium, except for movable furniture and trade
fixtures, shall become at once a part of the realty and shall, at the expiration or earlier
Page 7 of 23 11
termination of this Agreement, belong to the City. Any such alteration shall be in
conformance with the requirements of all municipal, state,federal and other governmental
authorities and in conformance with the reasonable rules and regulations of the City. The
Contract Officer may require that any such alterations be removed prior to the expiration of
the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and
expense and accomplished in a good and workmanlike manner. Any damage caused by
such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be
surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In
installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage
rate. PSP shall keep the Stadium and the property on which the Stadium is situated free
from any liens arising out of any work performed, material furnished or obligation incurred
or alleged to have been incurred by PSP.
2.7 Damage and Destruction
In the event of(a) a partial or total destruction of the Stadium that requires repairs to the
Stadium or(b)the Stadium being declared unsafe or unfit for occupancy by any authorized
public authority for any reason other than PSP's act, use or occupation, which declaration
requires repairs throughout the Stadium, the City shall have the right to either terminate
this Agreement or repair the Stadium. If the City elects to make said repairs, and provided
the City uses due diligence in making said repairs, this Agreement shall continue in full
force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated
between the City and PSP as of the date of such destruction.
2.8 Compliance with Law
PSP shall use the Stadium and conduct its operations thereon in accordance with all
ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or
local governmental agency having jurisdiction in effect.
2.9 Licenses, Permits, Fees and Assessments
PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the use of the Stadium and conduct of its operations thereon, and
shall indemnify, defend and hold harmless City against any such fees, assessments,taxes,
penalties or interest levied, assessed or imposed against City hereunder.
2.10 Further Responsibilities of Parties
The parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all
instruments, prepare all documents and take all actions as may be reasonably necessary
to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall
be responsible for the services of the other.
Page 8 of 23 12
2.11 Prohibited Activities.
2.11.1 The City reserves the right to prohibit the sale of any item at the concession
stand. Such determination shall be made by the Contract Officer.
2.11.2 Vending machines are prohibited.
2.11.3 The sale of tobacco and gum is prohibited.
2.11.4 The sale of any item which is contained in a glass container is prohibited.
2.11.5 All other activities when specified by the Contract Officer in writing and
delivered to PSP are prohibited.
2.12 Security and Access
Contract Officer and the lawful representative of any other public agency, as necessary,
shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's
compliance with the terms of this Agreement and all applicable laws. Such entry shall be
made upon oral notice to PSP, except that in cases of emergency, no notice shall be
required.
3. COMPENSATION
In consideration for this Agreement, PSP agrees to pay to the City the following:
3.1 Fixed Rental
3.1.1 RENT: PSP agrees to pay to the City as rental for said premises the sum of
One Thousand Dollars ($1,000) per month for use of the Stadium and/or
Cerritos Field. PSP shall promptly pay to the City the total rent for the current
month, with the rental fee commencing upon PSP's use of the Stadium on
January 22, 2018. The rental fee shall be paid within five(5)days to the City
for each month of Stadium and/or Cerritos Field use as authorized by this
Agreement for the period of January 22, 2018, through July 31, 2018. A total
of 6 monthly payments in the amount of $1,000 shall be due and payable,
with the final monthly payment prorated 25% of the rental fee for the term of
July 22 through July 31, 2018, in the amount of $250. The total rental fee
payable for the limited term of this Agreement is $6,250.
3.1.2 UTILITIES: PSP agrees to pay to the City 100% of all electrical and gas
costs for the Stadium at current utility rates, in accordance with Section 2.5
of this Agreement. City will prepare an invoice for billing to PSP. Upon receipt
of such billing, PSP shall promptly pay to the City the total utility costs for the
preceding month, and not later than thirty (30) days after receipt thereof.
Page 9 of 23 13
3.2 Security Deposit
PSP has provided City with a security deposit in the sum of One Thousand Dollars
($1,000). City may draw upon the security deposit to correct any default or breach of this
Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City
as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms,
covenants, and conditions of this Agreement, including, but not limited to, nonpayment of
Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit
during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by
City, replenish the security deposit to maintain it at amounts as herein required throughout
the lease term. Failure to do so shall be deemed a default and shall be grounds for
immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any
way diminish or be construed as waiving any of the City's other remedies as provided in
this Agreement or by law or in equity.
The security deposit shall be returned by City to PSP at the end of the term of this
Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each
and every term, covenant, and condition of this Agreement. The authorized refund of any
security deposit by City, after deduction of all amounts due City under this Agreement, shall
be made after sixty(60)days have elapsed following the effective date of said termination.
3.3 Concession Fee
The rental fee paid by PSP pursuant to Section 3.1 herein shall be in lieu of a Concession
Fee or other payment made to City for improvements to the Stadium. However, PSP
acknowledges and agrees that in the absence of a concession fee or other payment from
PSP sufficient for major capital improvements or repairs to the Stadium, City will not be
required to replace the electronic scoreboard; however, minor repairs required for the
electronic scoreboard, if such repairs can be performed by City staff, will be provided as
may be reasonably necessary.
3.4 Real and Personal Property Taxes
In addition to all other payments herein reserved, PSP shall pay directly to the taxing
authority any possessory interest taxes imposed upon PSP for the use of the Stadium and
all taxes assessed against and levied upon any fixtures, furnishings, equipment and all
other personal property of PSP located in the Stadium.
3.5 Late Payment
PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder
will cause the City to incur costs not contemplated by this Agreement,the exact amount of
which is extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges. Accordingly, any payment of any sums to be paid by
PSP not paid within ten (10)days of its due date shall be subject to a five percent(5%)late
charge. PSP and the City agree that this late charge represents a reasonable estimate of
Page 10 of 23 14
such costs and expenses and is fair compensation to the City for its loss suffered by such
late payment by PSP.
3.6 Interest
Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear
interest from and after the due date until paid at a rate equal to three percent(3%)over the
reference rate being charged by Bank of America, N.A. from time to time during such
period so long as the rate does not exceed the maximum non-usurious rate permitted by
law, in which case interest shall be the maximum non-usurious rate allowed by law at the
time the sum became due.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence
Time is of the essence in the performance of this Agreement.
4.2 Term
Unless earlier terminated in accordance with Section 8.6 of this Agreement,the term of this
Agreement shall commence on January 22, 2018, and terminating on July 31,2018.At the
sole discretion of the City Manager, this Agreement may be extended on a month-to-month
basis subject to all of the terms and conditions contained herein.
5. COORDINATION OF WORK
5.1 Representative of PSP. The following principals of PSP are hereby designated as
being the principals and representatives of PSP,authorized to act on its behalf with respect
to this Agreement and make all decisions in connection therewith:
Andrew Starke
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
For purposes of this Agreement, the foregoing principals may not be replaced without the
express written approval of City.
5.2 Contract Officer
The Contract Officer shall be the City Manager or his/her designee ("Contract Officer").
PSP shall be responsible for keeping the Contract Officer fully informed of PSP's use of the
Stadium and related facilities as authorized by this Agreement. PSP shall refer any
decisions that must be made by City to the Contract Officer. Unless otherwise specified,
any approval of City shall mean the approval of the Contract Officer.
Page 11 of 23 15
5.3 Subcontracting or Assignment Prohibited
The experience, knowledge, capability, expertise, and reputation of PSP, its principals and
employees, were a substantial inducement for City to enter into this Agreement.
Therefore, PSP shall not assign full or partial rights or obligations under this Agreement,
nor any monies due, voluntarily or by operation of law, without the prior written consent of
City. PSP shall not contract with any other entity to perform any work as may be required
under this Agreement without the prior written consent of City. If PSP is permitted to
subcontract any work as authorized by this Agreement by City, PSP shall be responsible to
City for the acts and omissions of its subcontractor(s) in the same manner as it is for
persons directly employed. Nothing contained in this Agreement shall create any
contractual relationships between any subcontractor and City. All persons engaged in the
use of the Stadium and related facilities will be considered employees of PSP. In addition,
neither this Agreement nor any interest in this Agreement may be transferred, assigned,
conveyed, hypothecated, or encumbered voluntarily or by operation of law,whetherfor the
benefit of creditors or otherwise, without the prior written consent of City. Transfers
restricted in this Agreement shall include the transfer to any person or group of persons
acting in concert of more than twenty five percent (25%) of the present ownership and/or
control of PSP, taking all transfers into account on a cumulative basis. In the event of any
such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be
void. No approved transfer shall release PSP or any surety of PSP from any liability under
this Agreement without the express written consent of City.
With respect to the foregoing, PSP may subcontract or assign the concession sales to a
licensed vendor upon prior written approval by the Contract Officer.
5.4 Independent Contractor
The legal relationship between the Parties is that of an independent contractor, and
nothing shall be deemed to make PSP a City employee.
A. During the use of the Stadium and related facilities as authorized by this Agreement,
PSP and its officers, employees, and agents shall act in an independent capacity
and shall not act or represent themselves as City officers or employees. The
personnel performing any work or services as authorized under this Agreement on
behalf of PSP shall at all times be under PSP's exclusive direction and control.
Neither City nor any of its officers, employees,or agents shall have control over the
conduct of PSP or any of its officers, employees, or agents, except as set forth in
this Agreement. City shall have no voice in the selection, discharge, supervision, or
control of PSP's employees, servants, representatives, or agents, or in fixing their
number, compensation, or hours of service. PSP shall pay all wages, salaries, and
other amounts due its employees in connection with this Agreement and shall be
responsible for all reports and obligations respecting them, including but not limited
to social security income tax withholding, unemployment compensation, workers'
compensation, and other similar matters. City shall not in any way or for any
purpose be deemed to be a partner of PSP in its business or otherwise a joint
Page 12 of 23 16
venturer or a member of any joint enterprise with PSP.
B. PSP shall not have any authority to bind City in any manner. This includes the
power to incur any debt, obligation, or liability against City.
C. No City benefits shall be available to PSP, its officers, employees, or agents in
connection with any performance under this Agreement. Except for payments
otherwise due to PSP as might be provided for in this Agreement, City shall not pay
salaries, wages, or other compensation to PSP for the performance of any work or
services as authorized by this Agreement. City shall not be liable for compensation
or indemnification to PSP, its officers, employees, or agents, for injury or sickness
arising out of performing any work or services in the use of the Stadium and related
facilities. If for any reason any court or governmental agency determines that the
City has financial obligations in this Agreement of any nature relating to salary,
taxes, or benefits of PSP's officers, employees, servants, representatives,
subcontractors, or agents, PSP shall indemnify City for all such financial obligations.
6. INSURANCE, INDEMNIFICATION AND BONDS
6.1 Types of Insurance. PSP shall procure and maintain, at its sole cost and expense,
the insurance described below. The insurance shall be for the duration of this Agreement
and includes any extensions, unless otherwise specified in this Agreement. The insurance
shall be procured in a form and content satisfactory to City. The insurance shall apply
against claims which may arise from PSP's use of the Stadium and other facilities as
authorized under this Agreement, including PSP's agents, representatives, or employees.
In the event the City Manager determines that PSP's use of the Stadium or other facilities
as authorized under this Agreement creates an increased or decreased risk of loss to the
City, PSP agrees that the minimum limits of the insurance policies may be changed
accordingly upon receipt of written notice from the City Manager or his designee. PSP
shall immediately substitute any insurer whose A.M. Best rating drops below the levels
specified in this Agreement. All insurance provided under this Agreement shall be on an
occurrence basis. The minimum amount of insurance required shall be as follows:
6.1.1 Commercial General Liability Insurance. PSP shall obtain and maintain,
in full force and effect throughout the term of this Agreement, a policy of
commercial general liability insurance written on a per occurrence basis with
a combined single limit of at least one million dollars($1,000,000.00)and two
million dollars ($2,000,000.00) general aggregate for bodily injury and
property damage including coverages for contractual liability, personal injury,
independent contractors, broad form property damage, products and
completed operations.
6.1.2 Workers' Compensation Insurance. PSP shall obtain and maintain, in full
force and effect throughout the term of this Agreement, workers'
compensation insurance in at least the minimum statutory amounts, and in
compliance with all other statutory requirements, as required by the State of
Page 13 of 23 17
California. PSP agrees to waive and obtain endorsements from its workers'
compensation insurer waiving subrogation rights under its workers'
compensation insurance policy against the City and to require each of its
subcontractors, if any, to do likewise under their workers' compensation
insurance policies. If PSP has no employees, PSP shall complete the City's
Request for Waiver of Workers'Compensation Insurance Requirement form.
6.1.3 Business Automobile Insurance. PSP shall obtain and maintain, in full
force and effect throughout the term of this Agreement, a policy of business
automobile liability insurance written on a per occurrence basis with a single
limit liability in the amount of one million dollars($1,000,000.00)bodily injury
and property damage. The policy shall include coverage for owned, non-
owned, leased, and hired cars.
6.1.4 Employer Liability Insurance. PSP shall obtain and maintain, in full force
and effect throughout the term of this Agreement, a policy of employer
liability insurance written on a per occurrence basis with a policy limit of at
least one million dollars ($1 ,000,000.00) for bodily injury or disease.
6.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City Manager or his/her designee prior
to commencing any work or services under this Agreement. PSP guarantees payment of
all deductibles and self-insured retentions. City reserves the right to reject deductibles or
self-insured retentions in excess of$10,000, and the City Manager or his/her designee may
require evidence of pending claims and claims history as well as evidence of PSP's ability
to pay claims for all deductible amounts and self-insured retentions proposed in excess of
$10,000.
6.3 Other Insurance Requirements. The following provisions shall apply to the
insurance policies required of PSP under this Agreement:
6.3.1 For any claims related to this Agreement, PSP's coverage shall be primary
insurance with respect to the City and its officers, council members,
officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the City and its officers, council members,
officials, employees, agents, and volunteers shall be in excess of PSP's
insurance and shall not contribute with it.
6.3.2 Any failure to comply with reporting or other provisions of the policies,
including breaches of warranties, shall not affect coverage provided to City
and its officers, council members, officials, employees, agents, and
volunteers.
6.3.3 All insurance coverage and limits provided by PSP and available or
applicable to this Agreement are intended to apply to each insured,
including additional insureds, against whom a claim is made or suit is
Page 14 of 23 18
brought to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations
shall limit the application of such insurance coverage.
6.3.4 No required insurance coverages may include any limiting endorsement
which substantially impairs the coverages setforth in this Agreement(e.g.,
elimination of contractual liability or reduction of discovery period), unless
the endorsement has first been submitted to the City Manager and
approved in writing.
6.3.5 PSP agrees to require its insurer to modify insurance endorsements to
delete any exculpatory wording stating that failure of the insurer to mail
written notice of cancellation imposes no obligation, or that any party will
"endeavor"(as opposed to being required)to comply with the requirements
of the endorsements. Certificates of insurance will not be accepted in lieu
of required endorsements, and submittal of certificates without required
endorsements will be rejected. It is PSP's obligation to ensure timely
compliance with all insurance submittal requirements as provided in this
Agreement.
6.3.6 PSP agrees to ensure that subcontractors, and any other parties involved
with the use of the Stadium who are brought onto or involved by PSP,
provide the same minimum insurance coverage required of PSP. PSP
agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with
the requirements of this section. PSP agrees that upon request, all
agreements with subcontractors and others engaged by PSP will be
submitted to the City for review.
6.3.7 PSP acknowledges and agrees that any actual or alleged failure on the
part of the City to inform PSP of non-compliance with any insurance
requirement in no way imposes any additional obligations on the City nor
does it waive any rights in this or any other regard.
6.3.8 PSP shall provide proof that policies of insurance required in this
Agreement, expiring during the term of this Agreement, have been
renewed or replaced with other policies providing at least the same
coverage. Proof that such coverage has been ordered shall be submitted
prior to expiration. Endorsements as required in this Agreement applicable
to the renewing or new coverage shall be provided to City no later than ten
(10) days prior to expiration of the lapsing coverage.
6.3.9 Requirements of specific insurance coverage features or limits contained in
this section are not intended as limitations on coverage, limits, or other
requirements, or as a waiver of any coverage normally provided by any
given policy. Specific reference to a given coverage feature is for purposes
Page 15 of 23 9
of clarification only as it pertains to a given issue, and is not intended by
any party or insured to be limiting or all-inclusive.
6.3.10 The requirements in this section supersede all other sections and
provisions of this Agreement to the extent that any other section or
provision conflicts with or impair the provisions of this section.
6.3.11 PSP agrees to provide immediate notice to City of any claim or loss against
PSP arising out of the use of the Stadium as authorized by this Agreement
and for any other claim or loss which may reduce the insurance available to
pay claims arising out of this Agreement. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City, or to
reduce or dilute insurance available for payment of potential claims.
6.3.12 PSP agrees that the provisions of this section shall not be construed as
limiting in any way the extent to which the PSP may be held responsible for
the payment of damages resulting from the PSP's activities or the activities
of any person or person for which PSP is otherwise responsible.
6.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by
authorized insurers in good standing with the State of California. Coverage shall be
provided by insurers admitted in the State of California with an A.M. Best's Key Rating of
B++, Class VII, or better, unless such requirements are waived in writing by the City
Manager or his designee due to unique circumstances.
6.5 Verification of Coverage. PSP shall furnish City with both certificates of insurance
and endorsements, including additional insured endorsements, affecting all of the
coverages required by this Agreement. The certificates and endorsements are to be
signed by a person authorized by that insurer to bind coverage on its behalf. All proof of
insurance is to be received and approved by the City before use of the Stadium
commences. City reserves the right to require PSP's insurers to provide complete, certified
copies of all required insurance policies at any time. Additional insured endorsements are
not required for the Workers' Compensation policy.
Verification of Insurance coverage may be provided by: (1) an approved General and/or
Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable
Certificate of Liability Insurance Coverage with an approved Additional Insured
Endorsement with the following endorsements stated on the certificate:
1. "The City of Palm Springs, its officials, employees, and agents are named as
an additional insured..." ("as respects City of Palm Springs Contract No. or "for any
and all work performed with the City"may be included in this statement).
2. "This insurance is primary and non-contributory over any insurance or self-
insurance the City may have..."("as respects City of Palm Springs Contract No. or"for
Page 16 of 23 20
any and all work performed with the City' may be included in this statement).
3. "Should any of the above described policies be canceled before the
expiration date thereof, the issuing company will mail 30 days written notice to the
Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail
such notice shall impose no obligation or liability of any kind upon the company, its agents
or representative" is not acceptable and must be crossed out.
4. Both the Workers' Compensation and Employers' Liability policies shall
contain the insurer's waiver of subrogation in favor of City, its elected officials, officers,
employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the
certificate holder on the policies. All certificates of insurance and endorsements are to be
received and approved by the City before work commences. All certificates of insurance
must be authorized by a person with authority to bind coverage, whether that is the
authorized agent/broker or insurance underwriter. Failure to obtain the required
documents prior to the commencement of use of the Stadium shall not waive PSP's
obligation to provide them.
6.6 Indemnification and Reimbursement. To the fullest extent permitted by law, PSP
shall defend (at PSP's sole cost and expense), indemnify, protect, and hold harmless City,
its elected officials, officers, employees, agents, and volunteers (collectively the
"Indemnified Parties"), from and against any and all liabilities, actions, suits, claims,
demands, losses, costs,judgments, arbitration awards, settlements, damages, demands,
orders, penalties, and expenses including legal costs and attorney fees (collectively
"Claims"), including but not limited to Claims arising from injuries to or death of persons
(PSP's employees included),for damage to property, including property owned by City, and
from any violation of any federal, state, or local law or ordinance that arise out of or relate
to PSP's use of the Stadium and related facilities as authorized under this Agreement.
This indemnification clause excludes Claims arising from the sole negligence or willful
misconduct of the City, its elected officials, officers, employees, agents, and volunteers.
Under no circumstances shall the insurance requirements and limits set forth in this
Agreement be construed to limit PSP's indemnification obligation or other liability under this
Agreement. PSP's indemnification obligation shall survive the expiration or earlier
termination of this Agreement until all actions against the Indemnified Parties for such
matters indemnified are fully and finally barred by the applicable statute of limitations or, if
an action is timely filed, until such action is final. This provision is intended for the benefit
of third party Indemnified Parties not otherwise a party to this Agreement.
7. RECORDS AND REPORTS
7.1 Accounting Records. PSP shall keep complete, accurate, and detailed accounts
of all time, costs, expenses, and expenditures pertaining in any way to this Agreement.
PSP shall keep such books and records as may be necessary or required by this
Agreement. The Contract Officer shall have full and free access to such books and
Page 17 of 23 21
records at all reasonable times, including the right to inspect, copy, audit, and make
records and transcripts from such records.
7.2 Reports. PSP shall periodically prepare and submit to the Contract Officer such
reports as may be required by this Agreement, or as the Contract Officer shall require.
7.3 Audit and Inspection of Records. After receipt of reasonable notice and during
the regular business hours of City, PSP shall provide City, or other agents of City, such
access to PSP's books, records, payroll documents, and facilities as City deems necessary
to examine, copy, audit, and inspect all accounting books, records,work data, documents,
and activities directly related to PSP's compliance with the terms of this Agreement. PSP
shall maintain such books, records, data, and documents in accordance with generally
accepted accounting principles and shall clearly identify and make such items readily
accessible to such parties during the term of this Agreement and for a period of three (3)
years from the date of final payment by City hereunder.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law and Venue. This Agreement shall be construed and interpreted
both as to validity and as to performance of the Parties in accordance with the laws of the
State of California. Legal actions concerning any dispute, claim, or matter arising out of or
in relation to this Agreement shall be instituted in the Superior Court of the County of
Riverside, State of California, or any other appropriate court in such County, and
Consultant covenants and agrees to submit to the personal jurisdiction of such court in the
event of such action.
8.2 Interpretation. This Agreement shall be construed as a whole according to its fair
language and common meaning to achieve the objectives and purposes of the Parties.
The terms of this Agreement are contractual and the result of negotiation between the
Parties. Accordingly, any rule of construction of contracts (including, without limitation,
California Civil Code Section 1654) that ambiguities are to be construed against the
drafting party, shall not be employed in the interpretation of this Agreement. The caption
headings of the various sections and paragraphs of this Agreement are for convenience
and identification purposes only and shall not be deemed to limit, expand, or define the
contents of the respective sections or paragraphs.
8.3 Default of PSP. PSP's failure to comply with any provision of this Agreement shall
constitute a default. If the City Manager, or his designee, determines that PSP is in default
in the performance of any of the terms or conditions of this Agreement, he/she shall notify
PSP in writing of such default. PSP shall have ten (10)days, or such longer period as City
may designate, to cure the default by rendering satisfactory performance. In the event
PSP fails to cure its default within such period of time, City shall have the right,
notwithstanding any other provision of this Agreement, to terminate this Agreement without
further notice and without prejudice of any remedy to which City may be entitled at law, in
equity, or under this Agreement. PSP shall be liable for all reasonable costs incurred by
City as a result of such default. Compliance with the provisions of this section shall not
Page 18 of 23 22
constitute a waiver of any City right to take legal action in the event that the dispute is not
cured, provided that nothing shall limit City's right to terminate this Agreement without
cause under Section 10.9.
8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in
writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of
any covenant, condition, or term contained in this Agreement, shall not be construed to be
a waiver of any subsequent or other default or breach, nor shall failure by the Parties to
require exact,full, and complete compliance with any of the covenants, conditions,or terms
contained in this Agreement be construed as changing the terms of this Agreement in any
manner or preventing the Parties from enforcing the full provisions.
8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the
Parties are cumulative and the exercise by either Party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other
rights or remedies for the same default or any other default by the other Party.
8.6 Legal Action. In addition to any other rights or remedies, either Party may take
legal action, in law or in equity, to cure, correct, remedy or recover damages for any
default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this
Agreement.
8.7 Attorney Fees. In the event any dispute between the Parties with respect to this
Agreement results in litigation or any non judicial proceeding, the prevailing Party shall be
entitled, in addition to such other relief as may be granted, to recover from the non-
prevailing Party all reasonable costs and expenses. These include but are not limited to
reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and
expenses incurred in any appeal or in collection of any judgment entered in such
proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or
petitioner of the litigation or non-judicial proceeding within thirty(30)days of the date set for
trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation
or proceeding.
9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees. No officer or employee of the City
shall be personally liable to PSP, or any successor-in-interest, in the event of any default or
breach by the City or for any amount which may become due to PSP or to its successor, or
for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. PSP acknowledges that no officer or employee of the City has
or shall have any direct or indirect financial interest in this Agreement nor shall PSP enter
into any agreement of any kind with any such officer or employee during the term of this
Page 19 of 23 23
Agreement and for one year thereafter. PSP warrants that PSP has not paid or given, and
will not pay or give, any third party any money or other consideration in exchange for
obtaining this Agreement.
9.3 Covenant Against Discrimination. In connection with its performance under this
Agreement, PSP shall not discriminate against any employee or applicant for employment
because of actual or perceived race, religion, color, sex, age, marital status, ancestry,
national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics,
or ethnicity), sexual orientation, gender identity, gender expression, physical or mental
disability, or medical condition (each a "prohibited basis"). PSP shall ensure that
applicants are employed, and that employees are treated during their employment,without
regard to any prohibited basis. PSP's actions and omissions hereunder shall not
incorporate any discrimination arising from or related to any prohibited basis in any PSP
activity, including but not limited to the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; provision of benefits,
rates of pay or other forms of compensation; and selection for training, including
apprenticeship. PSP shall fully comply with the provisions of Palm Springs Municipal Code
Section 7.09.040 relating to non-discrimination in city contracting.
10. MISCELLANEOUS PROVISIONS
10.1 Notice. Any notice, demand, request, consent, approval, or communication that
either party desires, or is required to give to the other party or any other person shall be in
writing. All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail,
registered or certified mail, postage prepaid, return receipt requested, or delivered or sent
by facsimile with attached evidence of completed transmission. All notices shall be
deemed received upon the earlier of(i)the date of delivery to the address of the person to
receive such notice if delivered personally or by messenger or overnight courier; (ii)five(5)
business days after the date of posting by the United States Post Office if by mail; or(iii)
when sent if given by facsimile. Any notice, request, demand, direction, or other
communication sent by facsimile must be confirmed within forty-eight(48) hours by letter
mailed or delivered. Other forms of electronic transmission such as e-mails, text
messages, and instant messages are not acceptable manners of notice required
hereunder. Notices or other communications shall be addressed as follows:
To City: City of Palm Springs
Attention: City Manager & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
Page 20 of 23 24
To PSP: Palm Springs Power Baseball
1832 North Mira Loma Way
Palm Springs, CA 92262
Attention: Andrew Starke
Telephone: (760) 778-4487
Facsimile: (760) 325-7206
10.2 Integrated Agreement. This Agreement constitutes the entire agreement between
the Parties and supersedes all prior negotiations, arrangements, agreements,
representations, and understandings, if any, made by or among the Parties with respect to
the subject matter in this Agreement.
10.3 Amendment. No amendments or other modifications of this Agreement shall be
binding unless through written agreement by all Parties.
10.4 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law. If any
provision of this Agreement shall be determined to be invalid by a final judgment or decree
of a court of competent jurisdiction, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the reminder of that provision, or the
remaining provisions of this Agreement unless the invalid provision is so material that its
invalidity deprives either Party of the basic benefit of their bargain or renders this
Agreement meaningless.
10.5 Successors in Interest. This Agreement shall be binding upon and inure to the
benefit of the Parties' successors and assignees.
10.6 Third Party Beneficiary. Except as may be expressly provided for in this
Agreement, nothing contained in this Agreement is intended to confer, nor shall this
Agreement be construed as conferring, any rights, including, without limitation, any rights
as a third-party beneficiary or otherwise, upon any entity or person not a party to this
Agreement.
10.7 Recitals. The above-referenced Recitals are hereby incorporated into the
Agreement as though fully set forth in this Agreement and each Party acknowledges and
agrees that such Party is bound, for purposes of this Agreement, by the same.
10.8. Corporate Authority. Each of the undersigned represents and warrants that(i)the
Party for which he or she is executing this Agreement is duly authorized and existing, (ii)he
or she is duly authorized to execute and deliver this Agreement on behalf of the Party for
which he or she is signing, (iii) by so executing this Agreement, the Party for which he or
she is signing is formally bound to the provisions of this Agreement, and (iv) the entering
into this Agreement does not violate any provision of any other Agreement to which the
Party for which he or she is signing is bound.
Page 21 of 23 25
10.9 Termination. The Contract Officer may terminate this Agreement for the
convenience of the City at any time, with or without cause, in whole or in part, upon giving
PSP written notice at any time after the last home game of each Season and at least sixty
(60)days prior to the first home game of each subsequent Season. Such termination shall
become effective on the 30th day after the date of the notice of termination.
(SIGNATURES CONTINUED TO NEXT PAGE)
Page 22 of 23 26
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates
stated below.
"CITY"
City of Palm Springs
Date: By:
David H. Ready, PhD
City Manager
APPROVED AS TO FORM: ATTEST
By: By:
Edward Z. Kotkin Anthony J. Mejia, MMC
City Attorney City Clerk
APPROVED BY CITY COUNCIL:
g Date: Agreement No.
Corporations require two notarized signatures. One signature must be from Chairman of Board, President,or any
Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant
Treasurer, or Chief Financial Officer.
PALM SPRINGS POWER BASEBALL CLUB, INC.
A CALIFORNIA CORPORATION
By By
Signature(Notarized) Signature(Notarized)
Page 23 of 23 ?
EXHIBIT A— CALENDAR SCHEDULE
2018 Calendar
January February Marsh April
Su Mo Tu We Th Fr Sa Su Mo Tu We Th Fr Sa Su Mo Tu We Th Fr Sa Su Mo Tu We Th Fr Sa
28 29 30 31 1 2 3 25 26 27 28 1 2 3 1 2 3 4 5 6 7
4 5 6 7 8 9 10 4 5 6 7 8 9 10 8 9 10 11 12 13 14
16 17 18 19 20 11 12 13 14 1S 16 17 11 12 13 14 15 16 17 15 16 17 18 19 20 21
21 22 23 24 25 26 27 18 19 20 21 22 23 24 18 19 20 21 22 23 24 22 23 24 25 26 27 28
28 29 30 31 1 2 3 25 26 27 28 1 2 3 25 26 27 29 30 31 29 30 1 2 3 4 5
May June July
Su Mo Tu We Th Fr Sa Su Mo Tu We Th Fr Sa Su Mo Tu We Th Fr Sa
29 30 1 2 3 4 5 27 28 29 30 31 1 2 i 2 3„' y S 6 7
6 7 8 9 10 11 12 3 4 5 6 7 8 9 8 9 10 11 12 13 14
13 14 15 16 17 18 19 10 11 12 13 14 15 16 15 16 17 18 19 20 21
20 21 22 23 24 25 17 18 19 20 21 22 23 22 23 24 25 26 27 28
29 30 31 1 2 24 2S 26 27 28 29 30 29 30 31 1 2 3 4
Palm Springs Power Baseball City Events
California Winter League(Mid-January-Mid-February) Palm Springs Police Department-National Night Out
January 22-February 19 1st Tuesday in October
Power Summer Season(Memorial Day-end of July) Library-Family Fun Fest
May 28-July 31 1st Wednesday of PSUSD's Springs Break(March 28,2018)
Palm Springs Youth Academy(6:00pm-8:00pm) P&R-MSLB Tournament
Practices twice per weeek(Monday's and Thursday's) Martin Luther King Weekend(Saturday-Monday)
USABA Tournament _
Overseeding-Statium Closed — Memorial Day Weekend(Saturday-Monday)
End of October-Beginning in January 4th of July Fireworks
iV
Cl0