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5/3/2006 - AGREEMENTS
FACILITIES USE AGREEMENT ThisFacilities Use Agreement("Agreement") is made and entered into this Jeday of 50 % , 2018, by and between the CITY OF PALM SPRINGS ("City"), a California tharter city and municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB, INC., ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. It is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium and related facilities, (hereinafter the "Stadium"), the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide an instructional league for Minor and Independent League professional players and competitive collegiate- level baseball entertainment for residents and visiting youth and adults at the Stadium. 1A.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 1B. GRANT OF NON-EXCLUSIVE USE 113.1 The City grants'PSP the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 1 B.2 PSP shall have the exclusive use of the offices, locker rooms and concession located at the Stadium subject to the terms and conditions more particularly set form below. 1 B.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all baseball games held for or on behalf of PSP during the term of this Agreement. Page 1 of 23 1 BA PSP shall have the exclusive use of the entire Stadium for the following specific periods of time: a) approximately twenty-five (25)dates of the instructional league,for the'California Winter League, extending from the third or fourth Monday in January (i.e. January 22, 2018)through the third Sunday in February(i.e. February 18, 2018); and b) approximately fifty-four (54) dates of the Palm Springs Youth Academy practices, on Mondays and Thursdays, extending from third or fourth Monday in January (i.e. January 22, 2018) through July 31; and c) approximately forty-five(45) home games of the collegiate 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 the Tuesday following Memorial Day (i.e. May 29, 2018) through July 31; d) approximately thirty-five (35) dates of the developmental league, for the Palm Springs Collegiate League, extending from the first or second week of June through the middle of July. (i.e. June 6, 2018- July 11, 2018); e) a maximum of three tournaments hosted by the Team. Exclusive use of the.Stadium for these purposes shall commence at 6:00 a.m. on the date of such home game or tournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team, at which time an updated Exhibit "A", Calendar Schedule, will be prepared by the City and provided back to PSP. PSP may request additional use of the Stadium for events other than baseball; however, City does not guarantee availability of the Stadium for any additional use not already authorized under this Agreement, per attached Exhibit "A", Calendar Schedule. The City reserves for itself the exclusive use of the Stadium, including the exclusive right to control and monitor admissions at all gates and the conditions by which all attendees are authorized to bring personal items, food and beverages(not including alcoholic beverages), or other accessory items into the Stadium, during the following periods of time: 1) Martin Luther King Weekend (Saturday— Monday) for use by the Men's Senior Baseball League; 2) Library—Family Fun Fest the last Wednesday in March (i.e.Wednesday, March 28, 2018); Page 2 of 23 3) Memorial Weekend (Saturday — Monday) for use by the San Diego Youth Baseball League; and 4) Fourth of July Fireworks Event (partnered with PSP, with PSP holding its All American July 4th Game prior to the Fireworks Event), including the exclusive right to control and monitor admissions at all gates and the conditions by which all attendees are authorized to bring personal items, food and beverages (not including alcoholic beverages), or other accessory items into the Stadium after the Game during the Fireworks Event; and 5) Palm Springs Police Department National Night Out the first Tuesday in October (i.e. Tuesday, October 2, 2018) PSP may have non-exclusive use of the Stadium at all other periods of time, subject to advance notice to the City. City reserves the right to designate use of the Stadium during periods of non-exclusive use upon notice to PSP, and provided PSP has not previously notified City of its intended use at the same period of time. 1 B.5 For the period commencing with the first home game of the Team and ending with the last home game of the Team, or the last tournament to be hosted by the Team, whichever is later, PSP shall have the exclusive right to use the locker rooms located at the Stadium. 1 B.6 During the term of this Agreement, PSP shall remain a member in good standing of the Southern California Collegiate Baseball League, the California Winter League and the Palm Springs Collegiate League, or such other leagues as approved by the City. 1 B.7 Within five (5)days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the offices and interior storage rooms, unless PSP has previously notified City of its intended non-exclusive use of the Stadium commencing upon the end of Season or of any tournament, to which City has approved such use. PSP's schedule shall take precedence in all scheduling of the Stadium. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this 'Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 1 B.8 Unless PSP has obtained City's prior approval for continued non-exclusive use of the Stadium for the period extending from the end of California Winter League Season and the start of the Southern California Collegiate League, City shall Page 3 of 23 relinquish the Stadium to PSP one week prior to opening Day for the summer season. However, the field can still be rented out by the City for other baseball events if PSP is not using the field. City shall relinquish the Stadium to PSP on an as-scheduled basis for tournaments and special events approved by the City, and PSP shall relinquish the Stadium back to the City within 48 hours of conclusion of any tournament or special event. 1 B.9 PSP shall prepare and submit to City an updated Calendar Schedule for calendar year 2019 on or before December 1, 2018, and annually thereafter, throughout the term of this Facility Use Agreement. City and PSP shall meet to discuss the proposed Calendar Schedule, and to the extent the City's exclusive use dates as identified herein, or any other such dates subsequently identified by the City for its exclusive use, are appropriately identified, the City will" review the proposed Calendar Schedule, whose approval will not be unreasonably withheld. Each new Calendar Schedule approved by the City shall be filed with the City Clerk, and thereupon be considered a replacement of Exhibit"A"to this Facility Use Agreement for the corresponding calendar year. 2. AREAS OF RESPONSIBILITY , 2.1 Use 2.1.1 City and PSP shall conduct a walk-thru of the Stadium to verify the condition prior to PSP taking possession. Upon PSP relinquishing Stadium to City, any damage or cleaning requirements, as determined at'the sole discretion of City, shall be satisfied by PSP. 2.1.2 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, and the sale of concessions during home games, and the promotion of City-approved events in addition to baseball. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights prior to and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game.The City shall stock and clean all exterior restroom prior to each game day, and PSP shall pay City $50 per game day for this service. PSP shall be responsible for any necessary restocking or cleaning of restrooms during an event. At the end of each day on which a game is played, PSP shall be responsible for ensuring that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.3 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for Page 4 of 23 which the Stadium is hereby rented to PSP. In addition,this Agreement does allow PSP to use the Cerritos Field for baseball activities when requested and granted by the City. PSP shall not sell or permit to be kept, used, displayed, or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies or (b) any alcoholic beverages unless expressly approved in advance by the Contract Officer. 2.1.4 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concession stand equipment. 2.1.5 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff, members and guests use the Stadium. 2.1.6 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP. The term"environmental law"shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term"hazardous material"includes,without limitation, any material or substance that is (i)defined or listed as a"hazardous waste", "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or(iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contract Officer of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment, and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball stadiums, including,without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets.The City reserves the right to retain concessions for.City-sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and Page 5 of 23 tournament games and for the sale of concessions shall-be uniform, except that PSP shall provide discounted admission prices for children under twelve (12), students and adults over sixty-five (65) years of age, and subject to the prior approval of the Contract. Officer, which approval shall not be unreasonably withheld.The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate,the same shall be modified as directed by the Contract Officer.PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall be removed upon termination of the Agreement. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall ,be subject to the approval of the Contract Officer, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism.The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at 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 Page 6 of 23 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 cleaning the Stadium to a good, neat, clean and orderly condition after third- party events and prior to the start of each baseball season no later than three (3) days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contract Officer. PSP shall not -contact the landscape maintenance contractor directly. 2.5 Utilities 2.5.1 The City shall provide and maintain water for the Stadium at the City's sole expense. 2.5.2 PSP will be responsible for 100% of all electrical costs incurred for the Stadium offices, locker rooms, outfield lights, and concessions, utilizing the Page 7 of 23 existing meters at the Stadium to track PSP's electrical usage for the air conditioning (A/C), the interior lights and outlets for the Stadium, the outfield . lights, and the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. 2.5.3 PSP will be responsible for the gas costs for the .Stadium, which is also metered. 2.5.4 PSP hereby waives, discharges, and holds harmless the City, its elected and appointed offices, employees and agents, for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency or impairment in the provision of utilities to the Stadium. 2.5.4 Payment for electrical.and gas costs shall be made directly to the City and will be due within ten (10) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.5.6 If a PSP game must be cancelled due to a Stadium malfunction, such as the lights not working or the sprinklers not turning off, and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, PSP will receive a one thousand dollar ($1,000) electrical credit from the City.. 2.6 Alterations and Fixtures -PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change'the appearance of the Stadium without the prior written consent of the Contract Officer, and.any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this -Agreement, .belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contract Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to'have:been incurred by PSP. 2.7 Damage and Destruction Page 8 of 23 In the event of (a) a partial or total destruction of the Stadium that requires repairs to the Stadium or(b)the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair.the Stadium. If the City elects to make said.repairs, and provided the City uses-due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.8 Compliance with Law PSP shall-use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.9 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees;assessments,taxes, penalties or interest levied, assessed or imposed against City hereunder. 2.10 Further Responsibilities of Parties The parties agree to use reasonable care and diligence. to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 2.11 Prohibited Activities. 2.11.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.11.2 Vending machines are prohibited. 2.11.3 The sale of tobacco and gum is prohibited 2.11.4 The sale of any item which is contained in a glass container is prohibited. 2.11.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.12 Security and Access Page 9 of 23 Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws.Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 3. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental 3.1.1 RENT: If not previously paid, PSP shall promptly pay to the City the total rent due and payable under that certain Facility Use Agreement approved by the City Council on January 24, 2018, which commenced upon PSP's use of the Stadium on January 22, 2018, (the total prior rental fee due and payable prior to commencement of this Facility Use Agreement is$6,250). Underthe terms of this Facility Use Agreement, PSP agrees to pay to the City as rental for,said premises the sum of One Thousand Dollars ($1,000) per month for use of the Stadium and/or Cerritos Field. The rental fee shall be paid within five (5) days to the City for each month of Stadium and/or Cerritos Field use as authorized by this Agreement for the period commencing August 1, 2018, through the term of this Agreement. 3.1.2 UTILITIES: If not previously paid,PSP shall promptly pay to the City the total utility costs due and payable under that certain Facility Use.Agreement approved by the City Council on January 24, 2018, which commenced upon PSP's use of the .Stadium on January 22, 2018. Under the terms of this Facility Use Agreement, PSP agrees to pay to the City 100% of all electrical and gas costs for the Stadium at current utility rates, in accordance with Section 2.5 of this Agreement. City will prepare an invoice for billing to PSP. Upon receipt of such billing, PSP shall promptly pay to the City the total utility costs for the preceding month, and not later than thirty (30)days after receipt thereof. 3.2 Security Deposit PSP has provided City with a security deposit in the-sum of One Thousand Dollars ($1,000). City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City- as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement,-including, but not limited to, nonpayment of Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout i Page 10 of 23 the lease-term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3:2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City; after deduction of all amounts due City 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 such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.6 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall-bear interest from and after the due date until paid at a rate equal to three percent(3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non-usurious rate permitted by law, in which case interest shall be the maximum non-usurious rate allowed by law at the time the sum became due. Page 11 of 23 4. . PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement,the term of this Agreement shall commence on August 1, 2018, for a period of three (3)years, terminating on July 31, 2021. At the sole discretion of the City Manager, this-Agreement may be extended for two (2) additional, two-year optional terms upon the expiration of the original term.Alternatively, at the City Manager's discretion, this Agreement may be extended on a month-to-month basis subject to all of the terms and conditions contained herein. 5. COORDINATION OF WORK 5.1 Representative of PSP. The following principals of PSP are hereby designated as being the principals and representatives of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City Manager�or his/her designee ("Contract Officer"). PSP shall be responsible for keeping the Contract Officer fully informed of PSP'.s use of the .'.Stadium and related facilities as authorized by this Agreement. PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. . 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, education, capability, and reputation of PSP, its principals and employees, were a substantial inducement for City to enter -into this Agreement. Therefore, PSP shall not contract with any other individual or entity to perform any services required under this Agreement without the City's express written approval. In addition, neither this Agreement, nor any interest may be assigned or transferred, voluntarily or by operation of law; without the prior written approval of City. With respect to the foregoing, PSP may subcontract or assign the concession sales to a Page 12 of 23 licensed vendor upon prior written approval by the Contract Officer. 5.4 Independent Contractor The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make PSP a City employee. A. During the use of the Stadium and related facilities as authorized by this Agreement, PSP and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing any work or services as authorized under this Agreement on behalf of PSP shall at all times be under PSP's exclusive direction and control. .Neither City nor any of its officers, employees, or agents shall have control over the conduct of PSP or any of its officers, employees, or agents, except as set forth in this Agreement. City shall have no voice in the selection, discharge, supervision, or control of PSP's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. PSP shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax.withholding, unemployment compensation, workers' compensation, and other. similar matters. City shall not in any way or for any purpose be. deemed to be a partner of PSP in its business or otherwise a joint venturer or a member of any joint enterprise with PSP. B. PSP shall not have any authority to bind City in any manner. This includes the power,to incur any.debt, obligation, or liability against City. C. No City benefits shall be available to PSP, its officers, employees, or agents in connection with any performance under this Agreement. Except for payments otherwise due to PSP as might be provided for in this Agreement, City shall not pay salaries, wages, or other compensation to PSP for the performance of any work or services as authorized by this Agreement. City shall not be liable for compensation or indemnification to PSP, its officers, employees, or agents, for injury or sickness arising out of performing any work or services in the use of the-Stadium and related facilities. If for any reason any court or governmental agency determines that the City has financial obligations in this Agreement of any nature relating to salary, taxes, or benefits of PSP's officers, employees, servants, representatives, subcontractors, or agents, PSP shall indemnify City for all such financial obligations. 6. INSURANCE, INDEMNIFICATION AND BONDS 6;1 Types of Insurance. PSP shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to. City. The insurance shall apply against claims which may arise from PSP's use of the Stadium and other facilities as Page 13 of 23 authorized under this Agreement, including PSP's agents, representatives, or employees. In the event the City Manager determines that PSP's use of the Stadium or other facilities as authorized under this Agreement creates an increased or decreased risk of loss to the City, .PSP agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from-the City Manager or his designee. PSP shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. All insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: 6.1.1 Commercial General Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars($1,000,000.00)and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. 6.1.2 Workers' Compensation Insurance. PSP shall obtain and maintain, in full force and effect throughout, the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. PSP agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. If PSP has no employees, PSP shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. 6.1.3 Business Automobile Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non- owned, leased, and hired cars. 6.1.4 Employer Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 6.2 Deductibles and Self-Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. PSP guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of$10,000, and the City Manager or his/her designee may Page 14 of 23 require evidence of pending claims and claims.history as well as evidence of PSP's ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $10,000. 6.3 Other Insurance Requirements. The following- provisions shall apply to the insurance policies required of PSP under this Agreement: 6.3.1 For any claims related to this Agreement, PSP's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, 'and volunteers. Any insurance or self- insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of PSP's insurance and shall not contribute with it. 6.3.2 Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. 6.3.3 All insurance coverage and limits provided by PSP and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 6.3.4 No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement(e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. 6.3.5 PSP agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required)to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements will be rejected. It is PSP's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 6.3.6 PSP agrees to ensure that subcontractors, and any other parties involved with the use of the Stadium who are brought onto or involved by PSP, provide the same minimum insurance coverage required of PSP. PSP agrees to monitor and review all such coverage and assumes all Page 15 of 23 responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. PSP agrees that upon request, all agreements with subcontractors and others engaged by PSP will be submitted to the City for review, 6.3.7 "PSP acknowledges and agrees that any actual or alleged failure on the part of. the City to inform PSP of non-compliance with any insurance requirement in noway imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 6.3.8 PSP shall provide proof that policies of insurance . required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the. same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. 6.3.9- Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, -or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 6.3.10 The requirements in this section supersede all other sections- and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. 6.3.11 PSP agrees to provide immediate notice to City of any claim or loss against PSP arising out of the use of the Stadium as authorized by this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice,-but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 6.3.12 PSP agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the PSP may be held responsible for . the payment of damages resulting from the PSP's activities or the activities of any person or person for which PSP is otherwise responsible. 6.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State-of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Page 16 of 23 Manager or his designee due to unique circumstances. 6.5 Verification of Coverage. PSP shall furnish City with both certificates of insurance and endorsements, including additional. insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before use of the Stadium commences. City reserves the right to require PSP's insurers to provide complete, certified copies of all required insurance policies at anytime. Additional insured endorsements are not required for the Workers' Compensation policy. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured..." ("as respects City of Palm Springs Contract No. "or "for any and all work performed with the City"may be included in this statement). 2. "This insurance is primary and non-contributory over any-insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No. "or"for any and all work performed with the City' may be included in this statement). 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing -company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's.waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person 'with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of use of the Stadium shall not waive PSP's obligation to provide them. 6.6 Indemnification and Reimbursement. To the fullest extent permitted by law, PSP shall defend (at PSP's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, Page 17 of 23 demands, losses, costs,judgments, arbitration awards, settlements, damages, demands, orders, penalties, -and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited.to Claims arising from injuries to or death of persons (PSP's employees included),for damage to property, including property owned by City, and from any violation of any federal, state, or'local law or ordinance that arise out of or relate -to PSP's use of the Stadium and related facilities as authorized under this Agreement. This indemnification clause excludes Claims arising from-the sole negligence or willful misconduct of.the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit PSP's indemnification obligation or other liability under this Agreement. PSP's indemnification obligation shall survive the expiration or earlier termination of-this Agreement until -all actions against the Indemnified Parties for.such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 7. RECORDS AND REPORTS 7.1 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 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 or in relation to this Agreement shall be instituted in the Superior .Court of the County of Riverside; State of California, or any other appropriate court-in such County, and PSP covenants and agrees to submit to,the personal jurisdiction of such court in the event of Page 18 of 23 such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning. to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of PSP. PSP's failure to comply with any provision of this Agreement shall constitute a default. If the City Manager, or his designee, determines that PSP is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify PSP in writing of such default. PSP shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event PSP fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement,to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. PSP shall be liable for all reasonable costs incurred by City as a,result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 10.9. 8.4- Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor"shall failure by.the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. 8.5 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. Page 19 of 23 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted,.to recover from the non- prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert PSP fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty(30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to PSP, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. PSP acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall PSP enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. PSP warrants that PSP has not paid or given,.and will not pay or give; any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, PSP shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). PSP shall ensure that applicants are employed,,and that employees are treated during their employment,without regard to .any prohibited basis. PSP's actions and omissions hereunder shall not incorporate any discrimination arising from.or related to any prohibited basis.in any PSP activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; provision of benefits, rates of pay or other forms of compensation; and selection for training, includi.ng apprenticeship. PSP shall fully comply with the provisions of Palm Springs Municipal Code Section 7.09.0.40 relating.to non-discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS . 10,1 Notice. Any notice, demand, request, consent, approval, or communication that either party desires,or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent Page 20 of 23 by facsimile with attached evidence of completed transmission. All notices shall be deemed,received upon the earlier of(i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii)five(5) business days after the date of posting by.the United States Post Office if by mail; or (iii) when sent if- given by facsimile. - Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required , hereunder. Notices or other communications shall be addressed as follows:. To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323.-8332 To PSP: Palm Springs Power Baseball 1901 E. Baristo Rd. Palm Springs, CA 92262 Attention: Andrew Starke Telephone: (760) 778-4487 Facsimile' (760) 325-7206 10.2 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and - supersedes all prior negotiations, arrangements, agreements, representations, and understandings; if any, made by or among the.Parties with respect to the subject matter in this Agreement. 10:3 Amendment: No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 10.4 Severability. Whenever, possible, each provision of this Agreement shall be interpreted in such a. manner as to. be effective and .valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid.provision is so material that its invalidity. deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. Page 21 of 23 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 10.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that(i)the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which.he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. 10.9 Termination. The Contract Officer may terminate this Agreement for the convenience of the City at any time, with or without cause, in whole or in part, upon giving PSP six (6) month's written notice. (SIGNATURES CONTINUED TO NEXT PAGE) Page 22 of 23 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: a B David H. Ready, PhD City Manager APPROVED AS TO FORM: ATTEST Edward Z. Kotkin o n y ejia, C City Attorney City Cler APPROVED BY CITY COUNCIL:. Date: to )0 ;AC�greement No. ego 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. igna u (Notan ed) Signature(Notarized) Page 23 of 23 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,'or validity of that document: State of Califor ' County of_ ` lv6 l ^ On V vLL a I Mg before me, &Afk�tX , J U'C- (here insert name and titl of the officer) personally appeared ho proved to me on the basis of satisfactory evidence to be the person( whose name,( is are subscribed to the within instrument and acknowledged to me that h sle/fey executed the same in his kr/tWr authorized capacity(i�s), and that by hi /Der/tWir signature(?;) on the instrument the person('o), or the entity upon behalf .of which the personal acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) - - - - - - - - - - - - - CYNTHIAA.BERARDI NotaryPublic—California Riverside County '> Commission#2229138 My Comm.Expires Feb 18,2022 AGREEMENT TO USE FACILITIES _ This Agreement to Use Facilities ("Agreement') is made and entered into this jj y of , 2018, by and between the CITY OF PALM SPRINGS ("City"), a California -cMrter city and municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. It is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium and related facilities,(hereinafter the "Stadium"), the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide an instructional league for Minor and Independent League professional players and competitive collegiate- level baseball entertainment for residents and visiting- youth and adults at the Stadium. 1A.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 1 B. GRANT OF NON-EXCLUSIVE USE 1 B.1 The City grants PSP the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 1 B.2 PSP shall have the exclusive use of the offices, locker rooms and concession located at the Stadium subject to the terms and conditions more particularly set form below. 1 B.3 The parties agree that PSP may identify the Stadium as its "home" stadium for all baseball games held for or on behalf of PSP during the term of this Agreement. ORIGINAL DID Page 1 of 23 AND/OR AGREEMENT 1 BA PSP shall have the exclusive use of the entire Stadium for the following specific periods of time: a) approximately twenty-five(25)dates of the instructional league,for the California Winter League, extending from January 22, 2018, through February 18, 2018; and b) approximately fifty-four (54) dates of the Palm Springs Youth Academy practices, on Mondays and Thursdays, extending from January 22, 2018, through July 31, 2018; and c) approximately forty-five(45) home games of the collegiate all-star baseball team owned by PSP, known as the Palm Springs Power("Team"), during the baseball season for the Southern California Collegiate League, extending from May 29, 2018, through July 31, 2018; d) a maximum of three tournaments hosted by the Team. Exclusive use of the Stadium for these purposes shall commence at 6:00-a.m. on the date of such home game or tournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted,by the Team, at which time an updated Exhibit"A", Calendar Schedule, will be prepared by the City and provided back to PSP. PSP may request additional use of the Stadium for events other than baseball; however, City does not guarantee availability of the Stadium for any additional use not already authorized under this Agreement, per attached Exhibit "A", Calendar Schedule. .. The City reserves for itself the exclusive use of the Stadium for the following periods of time: 1) Martin Luther King Weekend (Saturday—Monday)for use by the Men's Senior Baseball League; 2) Library— Family Fun Fest (Wednesday, March 28, 2018); 3) Memorial Weekend (Saturday — Monday) for use by the San Diego Youth Baseball League; and 4) Fourth of July Fireworks Event (partnered with PSP, with PSP holding its All American July 4th Game prior to the Fireworks Event) PSP may have non-exclusive use of the Stadium at all other periods of time,subject to advance notice to the City. City reserves the right to designate use of the Stadium during periods of non-exclusive use upon notice to PSP, and provided PSP has not Page 2 of 23 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 BY 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 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 lave'shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto.The term"hazardous material"includes,without limitation, any material or substance that is (i)defined or listed as a"hazardous waste", "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or(iv)substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contract Officer of the existence of hazardous Page 4 of 23 substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment, and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball stadiums, including,without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets.The City reserves the right to retain concessions for City-sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and tournament games and for the sale of concessions shall be uniform, except that PSP shall provide discounted admission prices for children undertwelve (12), students and adults over sixty-five(65)years of age, and subject to the prior approval of the Contract Officer, which approval shall not be unreasonably withheld.The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate,the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall be removed upon termination of the Agreement. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or Page 5 of 23 rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism.The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at 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 cleaning the Stadium to a good, neat, clean and orderly condition after third- party events and prior to the start of each baseball season no later than three (3) days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contract Officer. PSP shall not contact the landscape maintenance contractor directly. 2.5 Utilities 2.5.1 The City shall provide and maintain water for the Stadium at the City's sole expense. 2.5.2 PSP will be responsible for 100% of all electrical costs incurred for the Stadium offices, locker rooms, outfield lights, and concessions, utilizing the existing meters at the Stadium to track PSP's electrical usage for the air conditioning (A/C), the interior lights and outlets for the Stadium, the outfield lights, and the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. 2.5.3 PSP will be responsible for the gas costs for the Stadium, which is also metered. 2.5.4 PSP hereby waives, discharges, and holds harmless the City, its elected and appointed offices, employees and agents, for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency or impairment in the provision of utilities to the Stadium. 2.5.4 Payment for electrical and gas costs shall be made directly to the City and will be due within ten (10) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.5.6 If a PSP game must be cancelled due to a Stadium malfunction, such as the lights not working or the sprinklers not turning off, and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, PSP will receive a one thousand dollar ($1,000) electrical credit from the City. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the Contract Officer, and any alterations to the Stadium,except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier Page 7 of 23 termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state, federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contract Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by PSP. 2.7 Damage and Destruction In the event of(a) a partial or total destruction of the Stadium that requires repairs to the Stadium or(b)the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation,which declaration requires repairs throughout the Stadium, the City shall have the right to either terminate this Agreement or repair the Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.8 Compliance with Law PSP shall use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.9 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the use of the Stadium and conduct of its operations thereon, and shall indemnify, defend and hold harmless City against any such fees, assessments,taxes, penalties or interest levied, assessed or imposed against City hereunder. 2.10 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. Page 8 of 23 2.11 Prohibited Activities. 2.11.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.11.2 Vending machines are prohibited. 2.11.3 The sale of tobacco and gum is prohibited. 2.11.4 The sale of any item which is contained in a glass container is prohibited. 2.11.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.12 Security and Access Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the`purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 3. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental 3.1.1 RENT: PSP agrees to pay to the City as rental for said premises the sum of One Thousand Dollars ($1,000) per month for use of the Stadium and/or Cerritos Field. PSP shall promptly pay to the City the total rent for the current month, with the rental fee commencing upon PSP's use of the Stadium on January 22, 2018. The rental fee shall be paid within five(5)days to the City for each month of Stadium and/or Cerritos Field use as authorized by this Agreement for the period of January 22, 2018, through July 31, 2018.A total of 6 monthly payments in the amount of$1,000 shall be due and payable, with the final monthly payment prorated 25% of the rental fee for the term of July 22 through July 31, 2018, in the amount of $250. The total rental fee payable for the limited term of this Agreement is $6,250. 3.1.2 UTILITIES: PSP agrees to pay to the City 100% of all electrical and gas costs for the Stadium at current utility rates, in accordance with Section 2.5 of this Agreement. City will prepare an invoice for billing to PSP. Upon receipt of such billing, PSP shall promptly pay to the City the total utility costs for the preceding month, and not later than thirty (30) days after receipt thereof. Page 9 of 23 3.2 Security Deposit PSP has provided City with a security deposit in the sum of One Thousand Dollars ($1,000). City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City 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 such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.6 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent(3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non-usurious rate permitted by law, in which case interest shall be the maximum non-usurious rate allowed by law at the time the sum became due. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement,the term of this Agreement shall commence on January 22, 2018, and terminating on July 31, 2018.At the sole discretion of the City Manager, this Agreement may be extended on a month-to-month basis subject to all of the terms and conditions contained herein. 5. COORDINATION OF WORK 5.1 Representative of PSP. The following principals of PSP are hereby designated as being the principals and representatives of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). PSP shall be responsible for keeping the Contract Officer fully informed of PSP's use of the Stadium and related facilities as authorized by this Agreement. PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. Page 11 of 23 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, capability, expertise, and reputation of PSP, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, PSP shall not assign full or partial rights or obligations under this Agreement, nor any monies due, voluntarily or by operation of law, without the prior written consent of City. PSP shall not contract with any other entity to perform any work as may be required under this Agreement without the prior written consent of City. If PSP is permitted to subcontract any work as authorized by this Agreement by City, PSP shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for _persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the- use of the Stadium and related facilities will be considered employees of PSP. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law,whether for 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 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 California. PSP agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. If PSP has no employees, PSP shall complete the City's Request for Waiver of Workers'Compensation Insurance Requirement form. 6.1.3 Business Automobile Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non- owned, leased, and hired cars. 6.1.4 Employer Liability Insurance. PSP shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 6.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. PSP guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of$10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of PSP's ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $10,000. 6.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of PSP under this Agreement: 6.3.1 For any claims related to this Agreement, PSP's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of PSP's insurance and shall not contribute with it. 6.3.2 Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. 6.3.3 All insurance coverage and limits provided by PSP and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is Page 14 of 23 brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 6.3.4 No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement(e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. 6.3.5 PSP agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required)to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements will be rejected. It is PSP's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 6.3.6 PSP agrees to ensure that subcontractors, and any other parties involved with the use of the Stadium who are brought onto or involved by PSP, provide the same minimum insurance coverage required of PSP. PSP agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. PSP agrees that upon request, all agreements with subcontractors and others engaged by PSP will be submitted to the City for review. 6.3.7 PSP acknowledges and agrees that any actual or alleged failure on the part of the City to inform PSP of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 6.3.8 PSP shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. 6.3.9 Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes Page 15 of 23 of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 6.3.10 The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. 6.3.11 PSP agrees to provide immediate notice to City of any claim or loss against PSP arising out of the use of the Stadium as authorized by this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 6.3.12 PSP agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the PSP may be held responsible for the payment of damages resulting from the PSP's activities or the activities of any person or person for which PSP is otherwise responsible. 6.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by . authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. 6.5 Verification of 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 any and all work performed with the City' may be included in this statement). 3. "Should any of the above described policies be canceled before the expiration date thereof, the .issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of use of the Stadium shall not waive PSP's obligation to provide them. 6.6 Indemnification and Reimbursement. To the fullest extent permitted by law, PSP shall defend (at PSP's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs,judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (PSP's employees included),for damage to property, including property owned by City, and from any violation of any federal, state, or local law or ordinance that arise out of or relate to PSP's use of the Stadium and related facilities as authorized under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit PSP's indemnification obligation or other liability under this Agreement. PSP's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 7. RECORDS AND REPORTS 7.1 Accounting Records. PSP shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. PSP shall keep such books and records as may be necessary or required by this Agreement. The Contract Officer shall have full and free access to such books and Page 17 of 23 records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. PSP shall periodically prepare and submit to the Contract Officer such reports as may be required by this Agreement, or as the Contract Officer shall require. 7.3 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, PSP shall provide City, or other agents of City, such access to PSP's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records,work data, documents, and activities directly related to PSP's compliance with the terms of this Agreement. PSP shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of PSP. PSP's failure to comply with any provision of this Agreement shall constitute a default. If the City Manager, or his designee, determines that PSP is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify PSP in writing of such default. PSP shall have ten (10)days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event PSP fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement,to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. PSP shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not Page 18 of 23 constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 10.9. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, 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 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 (Le., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). PSP shall ensure that applicants are employed, and that employees are treated during their employment,without regard to any prohibited basis. PSP's actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any PSP activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; provision of benefits, rates of pay or other forms of compensation; and selection for training, including apprenticeship. PSP shall fully comply with the provisions of Palm Springs Municipal Code Section 7.09.040 relating to�non-discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in Writing. All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of(i)the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii)five(5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 Page 20 of 23 To PSP: Palm Springs Power Baseball 1832 North Mira Loma Way Palm Springs, CA 92262 Attention: Andrew Starke Telephone: (760) 778-4487 Facsimile: (760) 325-7206 10.2 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 10.4 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 10.9 Termination. The Contract Officer may terminate this Agreement for the convenience of the City at any time, with or without cause, in whole or in part, upon giving PSP written notice at any time after the last home game of each Season and at least sixty (60) days prior to the first home game of each subsequent Season. Such termination shall become effective on the 30th day after the date of the notice of termination. (SIGNATURES CONTINUED TO NEXT PAGE) Page 22 of 23 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: �C)/ By: David H. Ready, PhD r1city Manager APPROVED AS TO FORM: ATTEST B Edward Z. Kotkin on J. ejia, City Attorney City Clem, APPROVED BY CITY COUNCIL: 1•b• . Date: AffAgreement No.A Corporations require two notarized signatures. One signature must be from Chairman of Board,President,or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. PALM SPRINGS POWER BASEBALL CLUB Check one—Individual—Partnership X Corporation By By Signature(Notarized) Signature(Notarized) Page 23 of 23 FACILITY USE AGREEMENT EXTENSION CITY OF PALM SPRINGS PALM SPRINGS POWER BASEBALL CLUB This extension of the Agreement to Use Facilities is made and entered into this 1st day of December, 2015 by and between the CITY OF PALM SPRINGS ("City'), a municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB ("PSP"), a California Corporation. RECITALS a. The City and PSP entered into an Agreement to Use Facilities on the 25th day of April, 2011, for the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California. b. The City Council authorized the City Manager to extend the Agreement, at the discretion of the City Manager, and upon mutual agreement of the City and PSP, for two additional two-year terms. C. The Agreement terminated on November 30, 2013, and by mutual agreement the City and PSP extended the term to November 30, 2015. d. The City and PSP wish to further extend the term of the Agreement to November 30, 2017, pursuant to Section 4.2 of the Agreement, and clarify certain terms of the Agreement. NOW, THEREFORE, THE CITY AND PSP DO HERBY MUTUALLY AGREE AS FOLLOWS: SECTION 1. TERM. Unless earlier terminated in accordance with Section 8.6 of the Agreement, this extension shall commence on December 1, 2015, and terminate on November 30, 2017. SECTION 2. CONCESSION FEE. PSP will pay City a concession fee in accordance with the following schedule: February 1, 2016 $1,000 February 1, 2017 $1,000 For the purpose of this extension the concession fee will be spent by the City on improvements to the concession stand at the Stadium and improvements to any area, or any equipment that supports and services such area, that PSP has the exclusive use pursuant to Section 1 B.2 of the Agreement. SECTION 3. RESTROOM FACILITIES AND PAYMENTS. Notwithstanding Section 2.1.2 of the Agreement, PSP shall stock and clean all exterior restrooms, and the payment required of $50.00 to the City is deleted. SECTION 4. PARKING. Notwithstanding Section 2.1.2 of the Agreement, PSP shall be responsible for procuring parking attendants, to ensure users and guests do not park in the Palm Springs Library Parking Lot, during Library hours, with the exception of such users and guests that have a valid handicapped placard. Except as extended and otherwise clarified, all other terms of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the Parties have executed this Extension as of the dates stated below. "CITY" City of Palm Springs Date: ,Aft . ��. aD1b By: bavid H. Read City Manage APPROVED AS TO FORM: ATTEST I k4ic�e By: B . Douglas C. Holland, James Thompson City Attorney City Clerk "PSP" Palm Springs Power Baseball Club Date: By : &=31k Andrew Starke Chief Executive Officer CALIFORNIA �UGa�Sa annw. WINTFRIFACUF Good Afternoon David, Per the recommendation of Doug Holland, I am emailing you to request extending the City's agreement with the Palm Springs POWER Baseball Club Inc. as provided in section 4.2 for a 2 year extension. Additionally, I am willing to pay the $1,000 per year concession fee for the next two years as well. Please let me know if this is acceptable. Thank you very much, Andrew Starke President Palm Springs POWER/California Winter League Office: 760 778-4487 Fax: 760 325-7206 www.PaImSpringsPO W ERBaseball.com www.CaliforniaWinterLeague.com G' AIDA3 T"n '9R�A Palm Springs POWER Baseball 1901 East Baristo Rd. Palm Springs,CA 92262 ORIGINAL 810 Ph(760)778-HITS(4487)•Fax(760)325-7206 VaOR AG R EE M E 41 www.PalmSprinesPowerBasebaIl.com www.CaliforniaWinterLeague.com AGREEMENT TO USE FACILITIES yy,� This Agreement to Use Facilities ("Agreement") is made and entered into this �hlay of 2011,by and between the CITY OF PALM SPRINGS("City '),a municipal corporation, and PALM SPRINGS POWER BASEBALL CLUB("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. It is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium("Stadium"),the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW,THEREFORE,the City and PSP do hereby mutually agree as follows: IA. 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. 1 A.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. 1B. GRANT OF NON-EXCLUSIVE USE 113.1 The City grants PSP the nonexclusive use of the Stadium located at 1901 East Baristo Road, Palm Springs, California, subject to the terms and conditions more particularly set forth in this Agreement. 113.2 PSP shall have the exclusive use of the offices, locker rooms and concession located at the Stadium subject to the terms and conditions more particularly set forth below. 113.3 The parties agree that PSP may identify the Stadium as its"home"stadium for all baseball games held for or on behalf of PSP during the term of this agreement. IBA Subject only to the City's Fourth of July Fireworks event,PSP shall have the exclusive use of the entire Stadium for the following: (a)approximately forty-five(45)home dates of the collegiate all-star baseball team owned by PSP,known as the Palm Springs Power("Team"),during the baseball season for the Pacific Southwest League("Season");(b)approximately twenty-five(25)dates ofthe instructional league,for the California Winter League;and(c)a maximum of three(3)tournaments hosted by the Team. Exclusive use of the Stadium for these purposes shall commence at 6:00 am.on the date of such home game or tournament and end three(3)hours after the completion of each home game or,for a tournament,the last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team,but not later than November 30 of each year the Agreement is in effect. PSP may request additional use of the Stadium for events other than baseball; however, City does not guarantee availability of the Stadium for any additional use not akeady authorized under this Agreement. For any requests for additional use that are granted by City,PSP shall pay all fees in accordance with the C't 's comprehensive fee schedule in effect at the time the request is made. A �OR A,R EM 735380.2 1B.5 For the period commencing with the fast home game of the Team and ending with the last home game of the Team or the last tournament to be hosted by the Team,whichever is later,PSP shall have the exclusive right to use the locker rooms located at the Stadium. 113.6 During the term of this Agreement, PSP shall remain a member in good standing of the Souther California Collegiate League and the California Winter League,or such other leagues as approved by the City. 1 B.7 Within five(5)days of the last home game of the Season(including any tournament hosted by the Team),PSP shall vacate and surrender all areas of the Stadium,except for the offices and interior storage rooms. PSP's schedule shall take precedence in all scheduling of the Stadium,with the exception of the Black History Festival the last Saturday in February. For Winter and Summer League, however, dates for tournaments must be requested on a City Facility Use Application. Nevertheless,the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times that will not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two(72)hours of booking such an event. 1B.8 City shall relinquish the Stadium to PSP one week prior to opening Day for the summer season. However,the field can still be rented out by the City for other baseball events if PSP is not using the field. PSP shall relinquish the Stadium back to the City on August 15. For the Winter season,the City shall relinquish the Stadium to PSP on January 20 and PSP shall relinquish the Stadium back to the City on March 1. City shall relinquish the Stadium to PSP on an as-scheduled basis for tournaments and special events approved by the City and PSP shall relinquish the Stadium back to the City within 48 hours of conclusion of any tournament or special event. 2. AREAS OF 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 ofthe Team,the playing of home games by the Team,the hosting of tournaments by the Team,the sale of concessions during home games,and the promotion of City-approved events in addition to baseball.On the date of each home game or tournament game,PSP shall be responsible for turning on and off the field lights prior to and after the game. In addition, PSP shall be responsible for procuring parking attendants and adequate security personnel, as reasonably deemed necessary by the City, for each game. The City shall stock and clean all exterior restrooms prior to each game day,and PSP shall pay City$50 per game day for this service. PS shall be responsible for any necessary restocking or cleaning of restrooms during an event. At the end of each day on which a game is played, PSP shall be responsible for ensuring that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.3 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for which the Stadium is hereby rented to PSP. In addition,this Agreement does allow PSP to use the Cerritos Field outfield grass when requested and granted by the City for stretching and warming up during tournaments and the CWL season. PSP shall not sell or permit to be kept,used,displayed or sold in or about the Stadium(a)any article that may be prohibited by standard forms of fire insurance policies or(b)any alcoholic beverages unless expressly approved in advance by the Contract Officer. 735380.2 2.1.4 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand,use of the Stadium,and use of the concession stand and concession stand equipment. 2.1.5 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff,members and guests use the Stadium. 2.1.6 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense,take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP. The term environmental law shall mean any federal,state or local law,statute,ordinance or regulation pertaining to health,industrial hygiene or the environmental conditions on,under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term hazardous material includes,without limitation,any material or substance that is(i) defined or listed as a hazardous waste, hazardous substance or considered a waste, condition of pollution or nuisance under the environmental laws;(ii)petroleum or petroleum products or fractions thereof;(iii)asbestos;and/or(iv)substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the City of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty,program, refreshment and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food,drink and goods as are normally served by concessionaires in baseball stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets. The City reserves the 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 per event,except that PSP shall provide discounted admission prices for children under twelve(12),students and adults over sixty-five(65)years of age, and subject to the prior approval of the Contract Officer, which approval shall not be unreasonably withheld. The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services. The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to confer with the Contract Officer and justify the prices then in effect,if the Contract Officer determines that any price or prices are unreasonable or inappropriate,the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be received by PSP.Outfield advertising shall remain in place from March 1 through December 31 of each year the agreement is in effect. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer,which approval shall not be 735380.2 unreasonably withheld. The City reserves the right to temporarily cover or take down advertising signs during special events and/or rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes,PSP shall include reference to the City in all paid media(advertising),publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at www.paalmspringsca.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, to include offices, locker rooms and concessions,and the adjacent parking facilities,sidewalks and landscaping in a good,neat,clean and orderly condition and state of repair,including,but not limited to,cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium,PSP shall be deemed to have accepted the Stadium as being in a good,neat,clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City,the Stadium shall be surrendered in the same condition as when received and in a good,clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 2.4.2 The City hereby agrees to mow,water,seed and otherwise maintain the playing field of the Stadium in a condition satisfactory to conduct independent league baseball games,provided that PSP be responsible for preparation of the infield for all home games and tournament games. The City shall also maintain the playing field lights in a good condition and repair,including,but not limited to, replacing bulbs and fixtures as needed,on a timely basis,to be operable at the time of all home games and tournament games. The City shall also maintain all electrical repairs, structural repairs, and overall maintenance of the Stadium The City shall be responsible for cleaning the Stadium to a good, neat,clean and orderly condition after third-party events and prior to the start of each baseball season no later than three(3)days prior to relinquishing the Stadium to PSP of each year. All landscape maintenance requests or issues shall be directed to the Contract Officer. PSP shall not contact the landscape maintenance contractor directly. 2.5 Utilities 2.5.1 The City shall provide and maintain water for the Stadium at the City's sole expense. 2.5.2 PSP will be responsible for all electrical costs incurred for the Stadium offices, locker rooms and concessions. The City will install four(4) meters at the Stadium to track PSP's electrical usage. One(1)meter will be for the air conditioning(A/C);one meter for the interior lights and outlets for the Stadium;one for the outfield lights;and the fourth meter for the concession stand. Should the Stadium be used for events not affiliated with PSP, PSP will not be responsible for the electrical costs for such events. 735380.2 2.5.3 PSP will be responsible for the gas costs for the Stadium,which is also metered. 2.5.4 PSP hereby waives,discharges,and holds harmless the City,its elected and appointed officers,employees and agents,for any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect,deficiency or impairment in the provision of utilities to the Stadium. 2.5.5 Payment for electrical and gas costs shall be made directly to the City and will be due within ten(10)days of the date billed. If payment is not received within ten(10)days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.5.6 If a PSP game must be cancelled due to a Stadium malfunction,such as the lights not working or the sprinklers not turning off,and the City is unable to provide PSP with notice at least 24 hours prior to a scheduled game, PSP will receive a one thousand dollar($1,000) electrical credit from the City. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium,or any part thereof,or change the appearance of the Stadium without the prior written consent of the City,and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement,belong to the City. Any such alteration shall be in conformance with the requirements of all municipal,state,federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The City may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. hi 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 maybe required by law for the use of the Stadium and conduct of its operations thereon,and shall indemnify, defend and hold harmless City against any such fees,assessments,taxes,penalties or interest levied, assessed or imposed against City hereunder. 735380.2 2.10 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,neither party shall be responsible for the services of the other. 2.11 Prohibited Activities 2.11.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.11.2 Vending machines are prohibited. 2.11.3 The sale of tobacco,gum and all other items that create safety or litter problems,as determined by the Contract Officer, is prohibited. 2.11.4 The sale of any item which is contained in glass or a metal container is prohibited. 2.11.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are prohibited. 2.12 Security and Access Contract Officer and the lawful representative of any other public agency,as necessary,shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency,no notice shall be required. 3. COMPENSATION In consideration for this Agreement,PSP agrees to pay to the City the following: 3.1 Fixed Rental 3.1.1 RENT: PSP agrees to pay to the City as rental for said premises the sum of One Dollar($1.00)per year,first payment payable on the date of execution of this lease agreement,and thereafter on the 15'b day of January of each succeeding year. 3.1.2 UTILITIES: PSP will be responsible for the electrical and gas costs for the Stadium in accordance with Section 2.5 of this Agreement. 3.2 Security Deposit PSP has provided City with a security deposit in the sum of One Thousand Dollars($1,000) City may draw upon the security deposit to correct any default or breach of this Agreement by PSP,its successors or assigns,or for payment of expenses incurred by City as a result of the failure of PSP,its successors or assigns, to faithfully perform all terns, covenants,and conditions of this Agreement, including,but not limited to,nonpayment of Rent or utilities due pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement,PSP shall,within ten(10)days of any withdrawal by City,replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Agreement or by law or in equity. 735380.2 The security deposit shall be returned by City to PSP at the end of the term of this Agreement, as defined in Section 4.2, provided PSP has fully and faithfully performed each and every term, covenant, and condition of this Agreement. The authorized refund of any security deposit by City, after deduction of all amounts due City under this Agreement,shall be made after sixty(60)days have elapsed following the effective date of said termination. 3.3 Concession Fee PSP will pay City a concession fee in accordance with the following schedule: February 1,2011 -$500.00 February 1,2012 -$750.00 February 1,2013 -$1,000.00 The concession fee will be spent by City on improvements to the concession stand at the Stadium. Improvements will be mutually agreed upon by City and PSP in advance of any expenditures. 3.4 Real and Personal Property Taxes In addition to all other payments herein reserved,PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, firmishings, equipment and all other personal property of PSP located in the Stadium. 3.5 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include,but are not limited to,processing and accounting charges.Accordingly,any payment of any sums to be paid by PSP not paid within ten(10)days of its due date shall be subject to a five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.6 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent(3%)over the reference rate being charged by Bank ofAmerica,N.A.from time to time during such period so long as the rate does not exceed the maximum non-usurious rate pemutted by law,in which case interest shall be the maximum non-usurious rate allowed by law at the time the sum became due. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement,this Agreement shall commence on December 1,2010 and terminate on November 30,2013. At the discretion of the City Manager,this Agreement may be extended for two(2)two-year terms upon the expiration of the original term. 735380.2 5. COORDINATION OF WORK 5.1 Representative of PSP The following principal of PSP is hereby designated as being the principal and representative of PSP, authorized to act on its behalf with respect to this Agreement and make all decisions in connection therewith: Andrew Starke 2140 E.Rochelle Palm Springs,CA 92262 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal was a substantial inducement for City to enter into this Agreement. For purposes of this Agreement,the foregoing principal may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City Manager or the City Manager's designee,which may include the City's Department of Parks and Recreation Director or the designee or designees of the Director. It shall be the PSP's responsibility to assure that the Contract Officer is kept informed ofthe progress of the performance of the services and the PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terns of this Agreement. 5.3 Subcontracting or Assignment Prohibited The experience,knowledge, capability and reputation of PSP,its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, sublet, hypothecated or otherwise transferred voluntarily or by operation of law, whether for the benefit of creditors or otherwise,without the prior written approval of Contract Officer. However,PSP may subcontract or assign the concession sales to a licensed vendor upon prior written approval by the Contractor Officer. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent(50%)of the present ownership and/or control of PSP,taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer,including any bankruptcy proceeding,this Agreement shall be void. No approved transfer shall release PSP of any liability hereunder without the express consent of Contract Officer. 5.4 Independent Contractor Neither City nor any of its employees shall have any control over the manner,mode or means by which PSP, its agents or employees perform the services required herein,except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of PSP's employees, servants,representatives or agents, or in fixing their number,compensation or hours of service. PSP shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. PSP shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of PSP in its business or otherwise or a joint venturer or a member of any joint enterprise with PSP. 735380.2 6. INSURANCE,INDEMNIFICATION AND BONDS 6.1 Insurance PSP shall procure and maintain, at its sole costs and expense, in a form and content satisfactory to Contract Officer, during the entire term of this Agreement, including any extension thereof,the following policies of insurance: a. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per-occurrence basis in an amount not less than either(i)a combined single limit of One Million Dollars ($1,000,000) for bodily injury, death and property damage or (ii)bodily injury limits of Five Hundred Thousand Dollars ($500,000) per person, One Million Dollars($1,000,000)per occurrence and One Million Dollars($1,000,000)products and completed operations and property damage limits of Five Hundred Thousand Dollars($500,000)per occurrence and Five Hundred Thousand Dollars($500,000)in the aggregate. b. Worker's Compensation hisurance. Apolicy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both PSP and the City against any loss,claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by PSP in the course of carrying out the work or services contemplated in this Agreement. C. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than either(i)bodily injury liability limits of Two Hundred Fifty Thousand Dollars($250,000)per person and Five Hundred Thousand Dollars ($500,000)per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000)per occurrence and Two Hundred Fifty Thousand Dollars($250,000)in the aggregate or (ii)combined single limit liability of Five Hundred Thousand Dollars($500,000). Said policy shall include coverage for owned,non-owned, leased and hired cars. All of the above policies of insurance shall be primary insurance and shall name the City,its officers,employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty(30)days'prior written notice by registered mail to the City. hi the event any of said policies of insurance are canceled,PSP shall,prior to the cancellation date,submit new evidence of insurance in conformance with this Section 6.1 to the Contract Officer. No work or services under this Agreement shall commence until PSP has provided City with certificates of insurance or appropriate insurance binders evidencing the above insurance coverage and said certificates of insurance or binders are approved by City. PSP agrees that the provisions of this Section 6.1 shall not be construed as limiting in any way the extent to which PSP may be held responsible for the payment of damages to any persons or property resulting from PSP's activities or the activities of any person or persons for which PSP is otherwise responsible. In the event PSP subcontracts any portion of the work in compliance with Section 5.3 of this Agreement, the contract between PSP and such subcontractor shall require the subcontractor to maintain the same policies of insurance that PSP is required to maintain pursuant to this Section 6.1. 6.2 Indemnification 735380.2 books and records at all times during normal business hours of City, including the right to inspect, copy,audit and make records and transcripts from such records. Such records shall be maintained for a period of three(3)years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside,State of California,or any other appropriate court in such county,and PSP covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten(10)days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party, provided that if the default is an immediate danger to the health, safety and general welfare,such immediate action may be necessary. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to any legal action,and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 8.3 Waiver No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.A party's consent to or approval of any act by the other party requiring the parry's consent or approval shall not be deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.4 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times,of any other rights or remedies for the same default or any other default by the other party. 8.5 Legal Action In addition to any other rights or remedies, either party may take legal action, in law or in equity,to cure,correct or remedy any default,to recover damages for any default,to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.6 Termination for Default of PSP If PSP fails to cure a default within the time periods set forth in Section 8.2 above,then the City,in addition to any other rights or remedies it may have in law or equity,shall have the immediate 735380.2 right to remove all persons and property from the Stadium and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of PSP, all without services of notice or resort to legal process without being deemed guilty of trespass,or becoming liable for any loss or damage which may be occasioned thereby and may unilaterally terminate this Agreement by written notice effective three(3)calendar days after said notice. 8.7 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys'fees. Attorneys' fees shall include attorneys'fees on any appeal,and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRI1yIINATION 9.1 Non-Liability of City Officers and Employees No officer or employee of the City shall be personally liable to PSP, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to PSP or to its successor,or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest No officer or employee of the City shall have any financial interest,direct or indirect,in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his financial interest or the financial interest of any corporation,partnership or association in which he is, directly or indirectly, interested in violation of any state statute or regulation. PSP warrants that it has not paid or given and shall not pay or give any third party any money or other consideration for obtaining this Agreement. 9.3 Covenant Against Discrimination PSP covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them,there shall be no discrimination against or segregation of any person or group of persons on account of race,color,creed,religion, sex,marital status,national origin or ancestry in the performance of this Agreement. PSP shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race,color,creed, religion, sex,marital status,national origin or ancestry. 10. MISCELLANEOUS PROVISIONS 10.1 Notice Any notice, demand, request, document, consent, approval or communication either parry desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid,first-class mail,in the case of the City,to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743,and,in the case of PSP,to Andrew Starke,2140 E.Rochelle,Palm Springs, California 92262. Either party may change its address by notifying the other party of the change of 735380.2 address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two(72)hours from the time of mailing if mailed as provided in this section. 10.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 10.3 Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all previous negotiations, arrangements,agreements and understandings,if any,between the parties and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability In the event that any one or more of the phrases, sentences, clauses,paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences,clauses,paragraphs or sections of this Agreement hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that this invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that(i)such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party,(iii)by so executing this Agreement,such parry is formally bound to the provision of this Agreement, and(iv)the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. 10.6 Release PSP hereby releases and forever discharges City from and against any and all claims, demands, actions and causes of action whatsoever which PSP may have or may hereafter have specifically arising in any way out of the exercise by PSP of the rights afforded by this Agreement. This is a complete and final release and shall be binding upon PSP and covers claims arising out of or connected with PSP's presence and/or the use of all or any portion of the Stadium by PSP. 10.7 Assignment PSP may not assign this Agreement,or any right under it,whether voluntarily or by operation by law,to an affiliate or any third party without the prior written consent of City,which consent may be withheld in City's sole and absolute discretion. As a condition precedent to any assignment,the assignee must execute an assumption agreement assuming all ofthe obligations under this Agreement. PSP shall not be relieved of its obligations under this Agreement in the event of an assignment. 10.8 Termination The Contract Officer may terminate this Agreement for the convenience of the City at any time,with or without cause,in whole or in part,upon giving PSP written notice at any time after the 735380.2 last home game of each Season and at least sixty (60) days prior to the fast home game of each subsequent Season. Such termination shall become effective on the 30`" day after the date of the notice of termination. IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date fast written above. "CITY, CITY OF PALM SPRINGS DATED: By-=�' ' City Manager By: /I &� Director of Parks and Recreation ATTEST: APPROVED BY CITY COUNCIL s ity Clerk 6 q L51 z61' APPROVE TO FORM: City 4ttorney "PSP" (� PALM SPRINGS POWER BASEBALL CLUB DATED: 6 -S - By: �' Chief Executive Officer 735380.2 PSP,as a material part of the consideration to be rendered to the City under this Agreement, hereby waives claims against the City for damage to equipment or other personal property, trade fixtures,improvements,goods,wares,inventory and merchandise in,upon or about the Stadium and for injuries to persons in or about the Stadium from any cause arising at any time. PSP agrees to indemnify the City,its officers,agents and employees against and shall hold and save them and each of them harmless from any and all actions,suits,claims,damages to persons or property,losses,costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities') that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of PSP, its agents, employees, subcontractors or invitees provided for herein, or arising from the negligent acts or omissions of PSP hereunder, or arising from PSP's negligent performance of or failure to perform any term,provision, covenant or condition of this Agreement,but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City,its officers,agents or employees,who are directly responsible to the City,and in connection therewith: a. PSP shall defend any action or actions filed in connection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; b. PSP shall promptly pay any judgment rendered against the City,its officers,agents or employees for any claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work,operations or activities of PSP hereunder,and PSP agrees to save and hold the City, its officers,agents and employees harmless therefrom; C. In the event the City,its officers,agents or employees is made aparty to any action or proceeding filed or prosecuted against PSP for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work,operation or activities of PSP hereunder,PSP agrees to pay City, its officers, agents or employees and or employees in such action or proceeding, including,but not limited to, legal costs and attorneys' fees. 6.3 Sufficiency of Insurer or Surety The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated"A" or better in the most recent edition of Best Rating 12 The Ka Rating Guide or in the Federal Register,and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (Risk Manager)due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City,PSP agrees that the minimum limits of the insurance policies and the performance bond required by this Section 6 may be changed accordingly upon receipt of written notice from the Risk Manager, provided that PSP shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten(10)days of receipt of notice from the Risk Manager. 7. RECORDS AND REPORTS 7.1 Reports PSP shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 7.2 Records PSP shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such 735380.2 City Council ACTION SUMMARY July 22, 2009 Page 7 5.C. JOINT MEETING OF THE CITY COUNCIL AND COMMUNITY REDEVELOPMENT AGENCY FOR APPROVAL OF THE PURCHASE OF REAL PROPERTY LOCATED AT 3601 EAST MESQUITE AVENUE, FROM THE FAMILY YMCA OF THE DESERT, IN THE AMOUNT OF $403,293 AND A LEASE AGREEMENT WITH THE FAMILY YMCA OF THE DESERT FOR THE PROPERTY IN THE AMOUNT OF $1.00 PER YEAR FOR A TEN-YEAR PERIOD: Moved to the Consent Calendar as Item 2.K. 5.D. PALM SPRINGS POWER REQUEST FOR AN EXEMPTION AND/OR CONTRACT AMENDMENT TO BE RELIEVED OF CPI INCREASE FOR �� USE OF THE PALM SPRINGS STADIUM: ACTION: Approve the waiver of the current CPI adjustment and maintain 1"n the current facility rental rate for the balance of the agreement expiring at / the end of the Power season. Motion Councilmember Foat, seconded V by Mayor Pro Tern Mills and unanimously carried on a roll call vote. 5.E. APPOINTMENT OF VARIOUS COMMISSIONERS AND BOARD MEMBERS AS PART OF THE 2009 ANNUAL RECRUITMENT PROCESS: ACTION: 1) Reappoint Jonathan Westom to the Administrative Appeals t�4u� Board for the term ending June 30, 2012- 2)`Reappoint Robert Gebhard U 4JL Lj5+ and Norm King to the Airport Commission for the term ending June 30, 2012. 3) Appoint Howard Packer and Barbara Beaty to the Human Rights / Commission for the term ending June 30, 2012. 4) Appoint Donna Chaban and Marshall Walker to the Library Board for the term ending June 30, 2012. 5) Reappoint Andrew Starke and Alison Elsner to the Parks and Recreation Commission for the term ending June 30, 2012, Motion Mayor Pro Tern Mills, seconded by Councilmember Hutcheson and unanimously carried on a roll call vote. COUNCILMEMBER COMMENTS, REQUESTS, AND REPORTS: Councilmember Weigel requested the City Manager place on a future agenda a discussion to streamline the process on previously approved budgeted items. Mayor Pro Tern Mills provided an update on Census 2010. M*M;H hrned at 9:20 .m. in memo of former Palm P rVer Regular Meeting, Wednesday, September 2, preceded by a Closed Session at 4:30 P.M. SECOND AMENDMENT TO AGREEMENTTO USE FACILITIES This Second Amendment to the Agreement to Use Facilities with Palm Springs Power Baseball ('Second Amendment" or "Amended Agreement") is made and entered into this 6"' day of January, 2009,by and between the CITY OF PALM SPRINGS, a municipal corporation ('City") and Palm Springs Power Baseball, a California Corporation (PSP") and amends that certain "Agreement to Use Facilities" (the "Agreement") dated May 3, 2006 between the same parties. RECITALS A. On or about May 3, 2006, City and PSP entered into an "Agreement to Use Facilities" pursuant to which PSP was granted non-exclusive use of the Palm Springs Stadium (`Stadium"), located at 1901 East Baristo Road, for the purpose of holding a series of collegiate all-star baseball games during the baseball season for the Pacific Southwest League- B. PSP would like to participate in a Winter Baseball League known as the Arizona Winter League and has requested additional use of the Palm Springs Stadium. C. The existing Agreement to Use Facilities with PSP does not allow additional use of the Stadium without the consent of the City. D, City and PSP desire to amend the Agreement to extend the use of the Stadium to accommodate the additional dates needed for the new winter baseball league. AGREEMENT The Agreement is hereby amended as follows: 1. "IB.9 In addition to the foregoing, PSP shall have nonexclusive use of the entire Stadium for its approximately eight (9) home games of the professional baseball teatn owned by PSP, known as the Palm Springs Chill ("Teatn") during the baseball season for the Arizona Winter League (`Season") commencing at 1:05 p.m. for Friday, Saturday and Sunday games from January 31, 2009 through, February 27, 2009. and ending three (3) hours after the completion of each home game." 2. "3.1 Fixed Rental. PSP shall pay to the City an amount equal to Three Hundred Sixty-Two Dollars ($362), or such amount as the Council may adopt by resolution within the Comprehensive Fee Schedule, for each home game of PSC. Rent shall be paid to the City on or before the first of each mouth, in advance." 3. Except as expressly provided herein, all other terms and conditions of the Agreement shall remain in Full force and effect. [Signature Block on Next Page] IN WITNESS WHEREOF, the parties hereto executed this First Amendment to be effective as of the Date first written above. CITY OP PALM SPRINGS, a municipal corporation -- : City Man er EST: ity-Clerk AP;711 AS TO FORM: Palm Springs Power Baseball City Attorney Name: Andrt. j `s�rucl Title: 0,a-,rm&n AUR011T O By CITY COUNCIL APPRO31ED By CITY MANAGER My 1 53•�� P�a�� pwqy'� a ArD78;- 3 FIRST AMENDMENT TO AGREEMENTTO USE FACILITIES This First Amendment to the Agreenrent to Use Facilities with Palm Springs Power Baseball ("First Amendment" or "Amended Agreement") is made and entered into this 17`h day of October, 2007, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City") and Palm Spings Power Baseball, a California Corporation ("PSP") and amends that certain "Agreement to Use Facilities" (the "Agreement") dated May 3, 2006 between the same parties. RECITALS A. On or about May 3, 2006, City and PSP entered into an "Agreenrent to Use Facilities" pursuant to which PSP was granted non-exchisive use of the Palm Springs Stadium ("Stadium"), located at 1901 East Baristo Road, for the purpose of holding a series of collegiate all-star baseball games during the baseball season for the Pacific Southwest League, B. PSP would like to participate in a Winter Baseball League known as the Arizona Winter League and has requested additional use of the Palm Springs Stadium. C. The existing Agreement to Use Facilities with PSP does not allow additional use of the Stadium without the consent of the City. D. City and PSP desire to amend the Agreement to extend the use of the Stadium to accommodate the additional dates needed for the new winter baseball league. AGREEMENT The Agreement is hereby amended as follows: 1. "113.8 In addition to the foregoing, PSP shall have nonexclusive use of the entire = 9 Stadium for its approximately eight (8) home games of the professional baseball team owned by PSP, known as the Palm Springs Chill ("Team") during the baseball season for the Arizona Winter League ("Season") commencing at either 6:05 p.m. for Friday evening games or 4:05 p.m. for Saturday and Sunday `, Y a(temoon games from February 1, 200S through Sunday, February 24 and ending three (3) hours after the completion of each home game." 2. "3.1 Fixcd _Rental. PSP shall pay to the City an amount equal to Three Hundred Sixty-Two Dollars (S362), or such amount as the Council may adopt by resolution within the Comprehensive Fee Schedule, for each home g<arne of PSC. Rent shall be paid to the City on or before the first of each month, in advance." 3. Except as expressly provided herein, all other terms and conditions of the Agreement shall remain in full force and effect. [Signature Block on Next Page] IN WITNESS WHEREOF, the patties hereto executed this First Amendment to be effective as of the Date first written above. CITY OF PALM SPRINGS, a municipal coiporation City Manager �Il ST: � �- APPROVED BY CIH'COUNCILCit y�ler U0 .V� 1Y�- Aal APPROV AS TO FORM: Palm Springs Power Baseball City Atto ney / Name: Ana+t t)' Title: Palm Springs Power Baseball Use of Stadium Agreement A5282 AGREEMENT TO, USE FACILITIES MO 7857 05-03-06 This Agreement to Use Facilities ("Agreement") is made and entered into this day of _ � l.j 2006, by and between the CITY OF PALM SPRINGS ("City"), a California charter'aty, and PALM SPRINGS POWER ("PSP"), a California corporation. RECITALS A. City and PSP are mutually interested in and concerned with providing quality recreational activities for the citizens of Palm Springs. B. it is recognized that through a cooperative agreement between the City and PSP for the use of the Palm Springs Stadium ("Stadium"),the community and the residents of Palm Springs will enjoy additional recreational opportunities. NOW, THEREFORE, the City and PSP do hereby mutually agree as follows: 1A. INTENT OF AGREEMENT 1A.1 It is the intent of this Agreement to describe the responsibilities of the City and PSP in their cooperative effort to effectively promote and provide competitive collegiate-level baseball entertainment for residents and visiting youth and adults at the Stadium. 1A.2 It is the intent of this Agreement to solidify a supportive and working relationship between PSP and the City. 1A.3 It is the intent of this Agreement that both the City and PSP acknowledge and direct their efforts toward the development of quality baseball programs at the Stadium. 1B GRANT OF NON-EXCLUSIVE USE 1 B.1 The City grants PSP the nonexclusive use of the following portions of the Stadium located at 1901 East Baristo Road, Palm Springs, California,subject to the terms and conditions more particularly set forth in this Agreement. 1113.2 PSP shall have the exclusive use of the offices located at the Stadium during the term of this Agreement, except the City may grant third parties utilizing the Stadium the right to use the box office on days that PSP is not hosting home games or a tournament. 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. 1B.4 Subject only to the City's Fourth of July Fireworks event, PSP shall have the exclusive use of the entire Stadium for its approximately forty(40)home games of the collegiate all-star baseball team owned by PSP, known as the Palm Springs Power ("Team"), during the baseball season for the Pacific Southwest League ("Season"), plus all tournaments hosted by the Team, commencing at 6:00 a.m. on the date of such home game ortournament and ending three (3) hours after the completion of each home game or, for a tournament, last game of the day. PSP shall notify the City as soon as practicable of the dates of the home games for the Team and any tournaments to be hosted by the Team, but not later than April 30 of each year the agreement is in effect. Q`SMGiNA l� 0'IIL I B.5 For the period commencing with the first home game and ending with the last home game of the Team or tournament to be hosted by the Team, whichever is later, PSP shall have the exclusive right to use the locker rooms located at the Stadium. 113.6 During the term of this Agreement, PSP shall remain a member in good standing of the Pacific Southwest League. 1B.7 Within five (5) days of the last home game of the Season (including any tournament hosted by the Team), PSP shall vacate and surrender all areas of the Stadium, except for the locker rooms, offices and concession areas. PSP's schedule shall take precedence in all scheduling of the Stadium. Nevertheless, the City shall have the right to grant third parties the right to use all or any part of the Stadium at such times thatwill not conflict with the terms of this Agreement, and PSP agrees to cooperate and coordinate with Contract Officer for use of the Stadium by community and youth organizations during the baseball season. Contract Officer shall give PSP notice of other events to be conducted at the Stadium within seventy-two (72) hours of booking such an event. 2. AREAS OF RESPONSIBILITY 2.1 Use 2.1.1 PSP shall exercise this Agreement solely for the management of the Team, the playing of home games by the Team, the hosting of tournaments by the Team, and the sale of concessions during home games. On the date of each home game or tournament game, PSP shall be responsible for turning on and off the field lights 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. Similarly, each game, PSP shall be responsible to ensure that all trash cans at the Stadium are emptied and that all litter throughout the Stadium has been collected and properly disposed of. 2.1.2 PSP shall not use or permit to be used the Stadium or any part thereof for any purpose or purposes other than the express purpose or purposes for which the Stadium is hereby rented to PSP. In addition,this Agreement does not permit PSP to use the practice field. However, PSP may apply to the Contract Officer to use the Stadium or the practice field for other baseball-related events through the City's standard Facility Use Application process. PSP shall not sell or permit to be kept, used, displayed, or sold in or about the Stadium (a) any article that may be prohibited by standard forms of fire insurance policies or (b) any alcoholic beverages unless expressly approved in advance by the Contract Officer. 2.1.3 PSP shall have complete responsibility for the control and supervision of its staff members and invitees with respect to purchases from the concession stand, use of the Stadium, and use of the concession stand and concession stand equipment. 2.1.4 PSP shall be responsible for the control and safety of its staff, members and guests while PSP, its staff, members and guests use the Stadium. 2 2.1.5 PSP shall not engage in any activity on or about the Stadium that violates any environmental law and shall promptly, at PSP's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or environmental law for cleanup and removal of any contamination involving any hazardous material created or caused directly or indirectly by PSP.The term"environmental law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Stadium, as such laws are amended, and the regulations and administrative codes applicable thereto. The term "hazardous material" includes, without limitation, any material or substance that is (i) defined or listed as a "hazardous waste," "hazardous substance" or considered a waste, condition of pollution or nuisance under the environmental laws; (ii) petroleum or petroleum products or fractions thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. PSP shall provide prompt written notice to the Contract Officer of the existence of hazardous substances at the Stadium and any notices of violation of environmental laws received by PSP. 2.2 Concessions and Ticket Sales 2.2.1 The City hereby grants to PSP the exclusive right to operate all novelty, program, refreshment:, and concession facilities within the Stadium during home games and tournaments hosted by the Team. PSP shall serve and provide for the sale of such items of food, drink, and goods as are normally served by concessionaires in baseball stadiums, including, without limitation, souvenirs, programs, seat cushions, baseball caps and batting helmets.The City reserves the right to retain concessions for City-sponsored events or any third party events. 2.2.2 All rates charged for admission to the Stadium for home games and tournament games and for the sale of concessions shall be uniform, except that PSP shall provide discounted admission prices for children under twelve (12), students and adults over sixty-five (65)years of age, and subject to the prior approval of the Contract Officer,which approval shall not be unreasonably withheld. The standard used by the Contract Officer to approve or disapprove rates and prices shall be the prevailing market rate for such items and services.The Contract Officer shall have access to and the right to inspect the schedule of prices and rates charged for admission to the Stadium and concessions and, in the event that after PSP has been advised and given a reasonable opportunity to conferwith the Contract Officer and justify the prices then in effect, if the Contract Officer determines that any price or prices are unreasonable or inappropriate, the same shall be modified as directed by the Contract Officer. PSP shall display all prices at the point of sale for all admission and concessions conspicuously on signs approved by the Contract Officer. All rates for the sale of tickets and concession items are to be submitted to the Contract Officer for approval prior to any promotion or publication of said rates. 3 2.3. Advertising 2.3.1 PSP shall have the exclusive right to place advertising signs on the outfield fence of the Stadium at locations approved in advance by the Contract Officer. All revenue received from such advertising shall be paid to PSP. Outfield advertising shall remain in place from March 1 through December 31 of each year the agreement is in effect. Any damage caused by PSP through the installation or removal of advertising signs shall be immediately repaired by PSP at no cost to the City. Such advertising shall be subject to the approval of the Contract Officer, which approval shall not be unreasonably withheld. The City reserves the right to temporarily cover advertising signs during special events and/or rentals of the Stadium by third parties. PSP shall promote the Stadium and its Team in consultation with the City's Department of Tourism. The City shall be named in all advertising. For promotional purposes, PSP shall include reference to the City in all paid media (advertising), publications and signs. The City shall be identified on a credit line prominently presented on the PSP's website page. There shall be a hyperlink from the PSP's website to the City's website at www.ci.palm-springs.ca.us. The parties agree that said link may be "framed"whereby material or pages from the linked website appear in a frame on the site which creates the link. The parties expressly recognize their individual obligations and responsibilities for the content, quality, accuracy or completeness of materials contained on their respective websites and agree to hold each other harmless from any special, indirect, incidental or consequential damages that may arise from the use of or the inability to use the respective sites and/or the materials contained on either site whether the materials contained on the site are provided by the City or PSP. 2.3.2 The City shall be positioned as "Presenting Sponsor" in all advertising. An example of advertising includes, but is not limited to, receiving space to place one (1) full-page four-color advertisement on the inside of the PSP's official program for marketing and promotion purposes. 2.4 Repairs and Maintenance 2.4.1 PSP shall, at its sole cost and expense and subject to the City's obligations more particularly set forth below, keep and maintain the Stadium and the adjacent parking facilities, sidewalks and landscaping in a good, neat, clean and orderly condition and state of repair, including, but not limited to, cleaning the Stadium and removing all debris and litter from the Stadium after each home game and tournament game. By entering into the Stadium, PSP shall be deemed to have accepted the Stadium as being in a good, neat, clean and orderly condition. PSP agrees that upon the surrender of any portion of the Stadium to the City, the Stadium shall be surrendered in the same condition as when received and in a good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 2.4.2 The City hereby agrees to mow,water, seed and otherwise maintain the playing field of the Stadium in a condition satisfactory to conduct independent league baseball games, provided that PSP shall be 4 responsible for preparation of the infield for all home games and tournament games.The City shall also maintain the playing field lights in a good condition and repair, including, but not limited to, replacing bulbs and fixtures as needed, on a timely basis, to be operable at the time of all home games and tournament games. The City shall be responsible for cleaning the Stadium to a good, neat, clean and orderly condition after third-party events and prior to the start of each baseball season no later than Memorial Day of each year. 2.4.3 Before June 1, 2007, City will paint the exterior of the Stadium subject to architectural approval by the City's Planning Commission specific to paint color. 2.5 Utilities 2.5.1 The City shall provide and maintain all utilities forthe Stadium, including water, gas, and electricity except as noted below in Section 2.5.2. PSP hereby waives any and all claims it may now or in the future have against the City for any losses or damages sustained by PSP by reason of any defect, deficiency, or impairment in the provision of utilities to the Stadium. 2.5.2 PSP will pay the full cost of the utilities needed for outfield lighting in the amount as the City may establish from time to time and charge the City's Parks and Recreation Department. The outfield lighting will be metered and billed separately by the City to PSP. PSP will have exclusive control of one (1) of three (3) key-operated electrical meters in the Stadium which will provide full control over the use of the outfield lighting. PSP will also pay an equal to one-third of the Southern California Edison Demand Charge for electrical service to the Stadium each month in which the outfield lighting is used or there is a registered use on PSP's assigned meter. Payment will be due the City within fifteen (15) days of the date billed. If payment is not received within ten (10) days of its due date, a late charge will be applied pursuant to Section 3.6 of this Agreement. 2.6 Alterations and Fixtures PSP shall not make or suffer to be made any alterations to the Stadium, or any part thereof, or change the appearance of the Stadium without the prior written consent of the Contract Officer, and any alterations to the Stadium, except for movable furniture and trade fixtures, shall become at once a part of the realty and shall, at the expiration or earlier termination of this Agreement, belong to the City. Any such alteration shall be in conformance with the requirements of all municipal, state,federal and other governmental authorities and in conformance with the reasonable rules and regulations of the City. The Contract Officer may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or fixtures shall be at the PSP's sole cost and expense and accomplished in a good and workmanlike manner. Any damage caused by such removal shall be repaired at PSP's sole cost and expense so that the Stadium can be surrendered in a good, clean and sanitary condition as required by Section 2.4 above. In installing and removing any such alterations or fixtures, PSP shall pay the prevailing wage rate. PSP shall keep the Stadium and 5 the property on which the Stadium is situated free from any liens arising out of any work performed, material furnished or obligation incurred or alleged to have been incurred by PSP. 2.7 Capital Improvements During the original three-year term of this Agreement and any extension thereof, PSP agrees to pay the City the sum of at least Ten Thousand Dollars ($10,000) per year, due on or before October 1 of each year, and the City agrees to contribute the sum of Twenty Thousand Dollars($20,000) per yearfrom its annual Measure Y allocation, all sums being used to make specific capital improvements ("Projects") at the Stadium as identified and agreed to pursuant to this Section 2.7. In the event that Measure Y funds are not available to the City during any fiscal year or the City Council of the City determines in its sole discretion that there are insufficient Measure Y funds available for Stadium improvements during any fiscal year, the City shall not be obligated to make any contribution toward Stadium improvements pursuant to this Section 2.7 for each such fiscal year. PSP and City agree that on or before December 31 of each year during the term of this Agreement and any extension thereof, the parties will meet to confer and determine which Projects shall be done for that current fiscal year. 2.8 Damage and Destruction In the event of(a) a partial or total destruction of the Stadium that requires repairs to the Stadium or(b)the Stadium being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than PSP's act, use or occupation, which declaration requires repairs throughout the Stadium, the City shall have the right to eitherterminate this Agreement or repairthe Stadium. If the City elects to make said repairs, and provided the City uses due diligence in making said repairs, this Agreement shall continue in full force and effect. If the City elects to terminate this Agreement, all rentals shall be prorated between the City and PSP as of the date of such destruction. 2.9 Compliance with Law PSP shall use the Stadium and conduct its operations thereon in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any federal, state or local governmental agency having jurisdiction in effect. 2.10 Licenses, Permits, Fees and Assessments PSP shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law 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. 2.11 Further Responsibilities of Parties The parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good 6 faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 2.12 Prohibited Activities. 2.12.1 The City reserves the right to prohibit the sale of any item at the concession stand. Such determination shall be made by the Contract Officer. 2.12.2 Vending machines are prohibited. 2.12.3 The sale of tobacco, gum, and all other items that create safety or litter problems, as determined by the Contract Officer, is prohibited. 2.12.4 The sale of any item which is contained in glass or a metal container is prohibited. 2.12.5 All other activities when specified by the Contract Officer in writing and delivered to PSP are (prohibited. 2.13 Security and Access Contract Officer and the lawful representative of any other public agency, as necessary, shall have the right to enter any portion of the Stadium for the purposes of verifying PSP's compliance with the terms of this Agreement and all applicable laws. Such entry shall be made upon oral notice to PSP, except that in cases of emergency, no notice shall be required. 3. COMPENSATION In consideration for this Agreement, PSP agrees to pay to the City the following: 3.1 Fixed Rental PSP shall pay to the City an amount equal to Three Hundred Fifty Dollars($350), or such amount as the Council may adopt by resolution within the Comprehensive Fee Schedule, for each home game and day of tournament play ("Rent"). Rent shall be paid to the City on or before the first of each month, in advance. 3.2 Security Deposit PSP shall provide City with a security deposit in the sum of One Thousand Dollars ($1,000) due on or before May 1, 2006. City may draw upon the security deposit to correct any default or breach of this Agreement by PSP, its successors or assigns, or for payment of expenses incurred by City as a result of the failure of PSP, its successors or assigns, to faithfully perform all terms, covenants, and conditions of this Agreement, including, but not limited to, nonpayment of Rent pursuant to Section 3.1. In the event City withdraws any or all of the security deposit during the term of this Agreement, PSP shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Agreement. Nothing contained in this Section 3.2 shall in any way diminish or be construed as 7 waiving any of the City's other remedies as provided in this Agreement or by law or in equity. The security deposit shall be returned by 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 Percentage Gate Should PSP's paid gate attendance exceed one thousand(1,000) people for any home game or day of tournament play, PSP shall be required to pay to the City, on a monthly basis commencing on the fifteenth (15th)day of the month following the month in which the first home game is played, on or before the fifteenth(151h) day of each month, an amount equal to twenty percent(20%)of the amount of the total paid gate receipts for attendance in excess of one thousand (1,000)for that day. 3.4 Percentage of Concessions Should PSP's paid ticket sales exceed one thousand (1,000) people for any home game or day of tournament play, PSP shall pay to the City for each occurrence, on a monthly basis commencing on the fifteenth (15rh) day of the month following the month in which the first home game is played, on or before the fifteenth (15`h)day of each month, an amount equal to fifteen percent(10%)of the amount of gross sales for food and beverage concessions made in, upon or from the Stadium for the preceding month for all home games and tournament games and an amount equal to eighteen percent (18%) of the amount of gross sales for food and beverage concessions made in, upon or from the Stadium during the preceding month for all Stadium events other than home games or tournament games hosted by the Team. The term "gross sales," as used herein, means the total gross receipts for food and beverage concessions sold and fees charged by PSP for food and beverage concessions, whether for cash or credit or otherwise, and including the valuable consideration other than money received for any of the foregoing,without reserve or deduction for inability or failure to collect, including, but not limited to,sales and leases. Gross sales shall include the full retail price of any merchandise delivered or redeemed for coupons and all deposits not refunded to purchasers. Gross sales shall not include sales taxes, consumer excise taxes, gross receipt taxes and other similar taxes now or hereafter imposed upon the sale of merchandise or services, but only if collected separately from the selling price and collected directly from customers. PSP shall keep at the Stadium full, complete, and proper books, records and accounts of its daily gross sales and gate receipts, both for cash and on credit, at all times during the term of this Agreement. The Contract Officer shall have the right at any and all times during regular business hours to examine and inspect all books and records of PSP, including any sales tax reports pertaining to the business of PSP conducted in, upon or from the Stadium for the purpose of investigating and verifying the accuracy of any statement of gross sales and gate receipts and to cause an audit of the business of PSP to be made by an accountant of the City's selection. If the statement of gross sales or the statement 8 of gate receipts previously made to the City shall be found to be inaccurate,then, and in that event, there shall be an adjustment and one party shall pay the other on demand such sums as may be necessary to settle in full the accurate amount of such percentage rental or gate receipts that should have been paid to the City for the period or periods covered by such inaccurate statement or statements. If said audit shall disclose an inaccuracy of greater than three percent (3%) with respect to the amount of gross sales or gate receipts reported by PSP,then PSP shall immediately pay to the City the cost of such audit; otherwise, the cost of such audit shall be paid by the City. 3.5 Real and Personal Property Taxes In addition to all other payments herein reserved, PSP shall pay directly to the taxing authority any possessory interest taxes imposed upon PSP for the use of the Stadium and all taxes assessed against and levied upon any fixtures, furnishings, equipment and all other personal property of PSP located in the Stadium. 3.6 Late Payment PSP hereby acknowledges that late payment by PSP to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by PSP not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. PSP and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by PSP. 3.7 Interest Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such (period so long as the rate does not exceed the maximum non-usurious rate permitted by law, in which case interest shall be the maximum non-usurious rate allowed by law at the time the sum became due. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence Time is of the essence in the performance of this Agreement. 4.2 Term Unless earlier terminated in accordance with Section 8.6 of this Agreement, the term of this Agreement shall be for a period of three (3) years commencing on May 1, 2006 and terminating on December 31, 2009.At the discretion of the City Manager, this Agreement may be extended for two (2) two-year terms upon the expiration of the original term. 9 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 1832 North Mira Loma Way Palm Springs, CA 92262 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. For purposes of this Agreement, the foregoing principals may not be replaced without the express written approval of City. 5.2 Contract Officer The Contract Officer shall be the City's Department of Parks and Recreation Director or the designee or designees of the Director. It shall be the PSP's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the PSP shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 5.3 Subcontracting or Assignment Prohibited The experience, knowledge, capability and reputation of PSP, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, sublet, hypothecated or otherwise transferred voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of Contract Officer. However, PSP may subcontract or assign the concession sales to a licensed vendor upon prior written approval by the Contract Officer. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent(50%) of the present ownership and/or control of PSP, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release PSP of any liability hereunder without the express consent of Contract Officer. 5.4 Independent Contractor Neither City nor any of its employees shall have any control over the manner, mode or means by which PSP, its agents or employees perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of PSP's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. PSP shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent 10 contractor with only such obligations as are consistent with that role. PSP shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of PSP in its business or otherwise or a joint venturer or a member of any joint enterprise with PSP. 6. INSURANCE, INDEMNIFICATION AND BONDS 6.1 Insurance PSP shall procure and maintain, at its sole costs and expense, in a form and content satisfactory to Contract:Officer, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: a. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per-occurrence basis in an amount not less than either (i) a combined single limit of One Million Dollars ($1,000,000)for bodily injury,death and property damage or(ii) bodily injury limits of Five Hundred Thousand Dollars ($500,000) per person, One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) products and completed operations and property damage limits of Five Hundred Thousand Dollars ($500,000) per occurrence and Five Hundred Thousand Dollars ($500,000) in the aggregate. b. Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both PSP and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by PSP in the course of carrying out the work or services contemplated in this Agreement. c. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than either(i) bodily injury liability limits of Two Hundred Fifty Thousand Dollars ($250,000)per person and Five Hundred Thousand Dollars ($500,000) per occurrence and property damage liability limits of One Hundred Thousand Dollars ($100,000) per occurrence and Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate or(ii) combined single limit liability of Five Hundred Thousand Dollars ($500,000). Said policy shall include coverage for owned, non-owned, leased and hired cars. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days' prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, PSP shall, priorto the cancellation date, submit new evidence of insurance in conformance with this Section 6.1 to the Contract Officer. No work or services under this Agreement shall commence until PSP has provided City with certificates of insurance or appropriate insurance binders evidencing the above insurance coverage and said certificates of insurance or binders are approved by City. 11 PSP agrees that the provisions of this Section 6.1 shall not be construed as limiting in anyway the extent to which PSP may be held responsible for the payment of damages to any persons or property resulting from PSP's activities or the activities of any person or persons for which PSP is otherwise responsible. In the event PSP subcontracts any portion of the work in compliance with Section 5.3 of this Agreement, the contract between PSP and such subcontractor shall require the subcontractorto maintain the same policies of insurance that PSP is required to maintain pursuant to this Section 6.1. 6.2 Indemnification PSP, as a material part of the consideration to be rendered to the City under this Agreement, hereby waives claims against the City for damage to equipment or other personal property, trade fixtures, improvements, goods, wares, inventory and merchandise in, upon or about the Stadium and for injuries to persons in or about the Stadium from any cause arising at any time. PSP agrees to indemnify the City, its officers, agents and employees against and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities") that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of PSP, its agents, employees, subcontractors or invitees provided for herein, or arising from the negligent acts or omissions of PSP hereunder, or arising from PSP's negligent performance of orfailure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: a. PSP shall defend any action or actions filed in connection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attomeys' fees incurred in connection therewith; b. PSP shall promptly pay anyjudgment rendered against the City, its officers, agents or employees for any claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of PSP hereunder; and PSP agrees to save and hold the City, its officers, agents and employees harmless therefrom; c. In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against PSP for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of PSP hereunder, PSP agrees to pay City, its officers, agents or employees and or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 6.3 Sufficiency of Insurer or Surety The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most 12 recent edition of Best Ratinq Guide The Kev Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager") due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, PSP agrees that the minimum limits of the insurance policies and the performance bond required by this Section 6 may be changed accordingly upon receipt of written notice from the Risk Manager, provided that PSP shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 7. RECORDS AND REPORTS 7.1 Reports PSP shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 7.2 Records PSP shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and PSP covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10)days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this section shall be a condition precedent to 13 termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 8.3 Waiver No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.4 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.5 Legal Action In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.6 Termination for Default of PSP If PSP fails to cure a default within the time periods set forth in Section 8.2 above, then the City, in addition to any other rights or remedies it may have in law or equity, shall have the immediate right to remove all persons and property from the Stadium and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of PSP, all without services of notice or resort to legal process without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby and may unilaterally terminate this Agreement by written notice effective three(3)calendar days after said notice. 8.7 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees.Attorneys' fees shall include attorneys' fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery, and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 14 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-Liability of City Officers and Employees No officer or employee of the City shall be personally liable to PSP, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to PSP or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested in violation of any state statute or regulation. PSP warrants that it has not paid or given and shall not pay or give any third party any money or other consideration for obtaining this Agreement. 9.3 Covenant Against Discrimination PSP covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. PSP shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 10. MISCELLANEOUS PROVISIONS 10.1 Notice Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid,first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743, and, in the case of PSP,to the person at the address designated in Section 5.1 of this Agreement. Dither party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 10.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 10.3 Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and 15 all previous negotiations, arrangements, agreements and understandings, if any, between the parties and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceabiRy shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that this invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provision of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. 10.6 Release PSP hereby releases and forever discharges City from and against any and all claims, demands, actions and causes of action whatsoeverwhich PSP may have or may hereafter have specifically arising in any way out of the exercise by PSP of the rights afforded by this Agreement. This is a complete and final release and shall be binding upon PSPBF and covers claims arising out of or connected with PSP's presence and/or the use of all or any portion of the Stadium by PSP. 10.7 Assignment PSP may not assign this Agreement, or any right under it, whether voluntarily or by operation by law, to an affiliate or any third party without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. As a condition precedent to any assignment, the assignee must execute an assumption agreement assuming all of the obligations under this Agreement. PSP shall not be relieved of its obligations under this Agreement in the event of an assignment. (SIGNATURES CONTINUED TO NEXT PAGE) 16 IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above. "CITY" CITY OF PALM SPRINGS By: City Manager Date: Director of Parks and Recreation Date: S -`/- G( Atte�sC� � ���� ��� APPROVED BY CITY COUNCIL amity Clerk iM •�� ��� ti Aroveos to form: 4f City Att mey "PSPBC" PALM SPRINGS POWER BASEBALL CLUB L h By: Chief E ecuttive Officer Date: 'P v 06 17 EXHIBIT "A" TO AGREEMENT TO USE FACILITIES BY AND BETWEEN CITY OF PALM SPRINGS AND PALM SPRINGS POWER CAPITAL IMPROVEMENTS Projects may include, but are not limited to, repair and/or facility improvements to one ormore of the following: Painting of building interior and/or exterior; Stadium office remodeling; Concession upgrades; Restroom and/or locker room upgrades; Batting cage upgrades; Press box, public address system, and misting system upgrades; Dugout upgrades; Scoreboard repair and/or replacement. If any improvement that has been mutually agreed up by both parties is solely paid for by either PSP or the City, the cost of such improvement will be credited toward that party's annual obligation. EXHIBIT "A" Page 1 of 1 EXHIBIT"B" TO AGREEMENT TO USE FACILITIES BY AND BETWEEN CITY OF PALM SPRINGS AND PALM SPRINGS POWER City agrees to waive Section 3.3 Percentage of Gate, and Section 3.4 Percentage of Concessions, within the agreement for any three (3) play dates each year of the agreement. As an example, one of the following three dates would qualify. 1. Opening Day 2. Day After Opening Day 3. Fourth of July EXHIBIT "B" Page 1 of 1 AMC MEMBER CERTIFICATE lc,an Allernative Insurance Corporation COMMERCIAL GENERAL LIABILITY 555 College Road East Princeton N.J.08543.5212 Named Insured Member and Address: Policyholder: NBC/Palm Springs Power Baseball Club,Inc. Sports and Recreation Providers Association Risk 1901 E.Baristo Road Management,Inc. Palm Springs,CA 92262 1776 South Naperville Road,Bldg-B Wheaton IL 60189 Member Certificate No.76A2GL 1021675-01 Policy No.76A2GL000000 1-0 1 Certificate Coverage Period: From: 2/13/06 To: I/I/07 at 12:01 A.M. Standard Time at the address of the Named Insured Member Form of Business ® Individual ® Limited Liability Company ❑ iParnership ❑ Organization(Other Than Partnership,Joint Venture or Limited Liability Company) ❑ Joint Venture COVERAGE - I THE TEEMS,EXCLUSIONS AND CONDITIONS OF THE INSURANCE PROVIDED UNDER THIS CERTIFICATE ARE CONTAINED IN TI-IE COMMERICAL GENERAL LIABILITY POLICY(CGL)ISSUED TO SPORTS AND RECREATION PROVIDERS ASSOCI,ATIOK RISK MANAGEMENT,INC. THE COMPLETE CGL POLICY IS AVAILABLE FOR YOUR REVIEW AND/OR INSPECTION UPON YOUR REQUEST TO THE PROGRAM ADMINISTRATOR SHOWN BELOW. THE INSURANCE AFFORDED BY THIS CERTIFICATE SHALL NOT AMEND OR ALTER THE TERMS,EXCLUSIONS AND CONDITIONS OF THE CGL POLICY INDICATED ABOVE. LIMITS OF INSURANCI, $I,000,000 Each Occurrence Limit ❑ (If checked:Hired and Non-Owned Auto Liability coverage is provided) Limits $300,000 Damages To Premises Rented to You(any one premises) Of NOT Medical Expense(any one person) Insurance COVERED $1,000,000 Personal and Advertising Injury Limit $2,000,000 General Aggregate Limit(per certificate of insurance) $1,000,000 Products-Completed Operations Aggregate Limit Deductible N/A Each Claim Descri Athletic]Programs-Amateur i Premium firichr�cs Fluid aridlVon-On nod'1nfri:prcmnird,iEProvrded): (Bases of Premium) Rate Minimum and Deposit Premium 15 Participants $85.00 $85.00 Copyright 2004 American Alternative Insurance Corporation. Includes copyrighted material of the Insurance Services Office,Inc.with its permission. SRGL100(08/04) Page 1 of 4 ,� T� MEMBER CERTIFICATE titi�. COMMERC1iAL GENERAL LLABILITY American Alternative Insurance Corporation 555 College Road East Princeton N.J.085435212 i SUMMIAR V O F F CPVERAGt ANT1'E)�CL`USIONS Who Is Covered This program provides protection for your coaches,volunteers,officers,directors,team or league against claims of bodily injury liability,property damage liability,and personal and advertising injury liability,and for the litigation costs to defend against such claims. Coverage is offered through Sports and Recreation Providers Association Risk Management,Inc. There is no deductible amount. What Is Covered: GI All activities necessary to conduct of O'Injury or death of participants practices or games 0 Injury or death of spectators 0 Cost of investigation and defense of claims, 0 Injury or death of volunteers even if groundless O Ownership,use or maintenance of fields or practice areas Z General negligence claims O Property damage liability 27 Host liquor liability(non-profit) Optional Coverage: • .Additional Insureds—subject to approval. • :Hired and non-owned auto liability coverage is available in all states(except:IL,LA,VT). This coverage provides Viability protection for rented,borrowed and other non-owned vehicles driven on league or team business. What is.excluded: Refer to the Commercial General Liability Coverage Form for exclusions. The following are additional exclusions by endorsement to the"policy". C"Policy'means:Declarations,Extension Schedules, Coverage Form and all applicable endorsements.) OO Abuse or Molestation O Hepatitis, [HIV,HTLV or AIDS],and Transmissible OO Aircraft,Autos or Watercraft Spongiform Encephalopathy OO All Acts Of Terrorism OO Lead Poisoning OO Asbestos Liability O Medical Payments O Assault And Battery OO Nuclear Energy Liability OO Collapse Of Temporary Structures O Professional Liability O Designated Activities** O Pyrotechnics Activity O Employment Related Practices O Total Pollution OO Fungi and Bacteria OO War Liability ** There is no liability coverage for claims arising out of any of the following designated activities: o All Motor Sports O Rodeo or any Equestrian Related Sports O Ballooning OO Sale/Manufacturing Distribution of Athletic Equipment O Bungee Jumping O Skin&Scuba Diving Q Cheerleading Pyramids O Snow Skiing O Gymnastics OO Squash OO Loge O Tobogganing OO Mountain Climbing OO Use of Saunas or Tanning Devices OO Parachuting LR7 Use of Trampolines O Polo OO Water Slides OO Rock Climbing O White Water Rafting Copyright 2004 American Alternative Insurance Corporation. Includes copyrighted material of the Insurance Services Office, Inc.with its permission. SRGL100(08/04) Page 2 of 4 i s MEMi$ER CERTIFICATE Amerleanllllumi{ve insurance Corporation COMMERCIIA-L, GENERAL LIABILITY 555 college Road East Princeton N.J.96543-5212 LIST666 OF:FORIVIS AND:ENDORSEMENTS APPLIC9BLE;TO-TI3IS.CERTIFICATE X ISSIIE"'. Form# Edition Date Form Name CL 2000 (01196) Common Policy Dec IL 00 17 (11 98) Common Policy Conditions G1,2000a (01/96) GL Coverage Part Dec. VLCW0l (05/96) Signature Endorsement CG 00 01 1001 Commercial General Liability Coverage Form CG 00 62 1202 1 Exclusion-War Liability CG 0I 99 1093 1 Illinois Changes CG 02 00 0487 1 Illinois Changes-Cancellation And Non-Renewal CG 21 35 10 01 Exclusion-Coverage C-Medical Payments CG 2 146 07 98 Exclusion-Abuse or Molestation CG 2147 07 98 Exclusion-Employment Related Practices CG 211 49 09 99 Exclusion-Total Pollution CG 2167 04 02 Exclusion-Fungi or Bacteria CG 2175 12 02 Exclusion-Certified Acts Of Terrorism And Other Acts Of Terrorism GL 2004 11/03 Exclusion-Asbestos GL2005 I1/03 Exclusion-Lead IL 00 21 04 87 Exclusion-Nuclear Energy Liability SRGL100 0804 Member Certificate—Commercial General Liability SRGL101 0"u 04 Hired and Non-Owned Automobile Liability SRGL102 0804 Association Amendatory SRGLI03 0904 Condition-Monthly Reporting SRGLI04 0804 Condition-Unreserved Seating SRGL105 0804 Condition-Waiver and Release SRGLIO`u 08 04 Corlinuit<y of Coverage SRGL 107 0804 Exclusion-Airctaf,Autos or Watercraft SRGLI08 0804 Exclusion-Collapse of Temporary Structures SRGL109 0s 04 Exclusion-Designated Operations or Activities SFIGLI 10 0804 Exclusion-Expected Or Intended Injury SRGLI 11 08 04 Exclusion-Hepatitis,T,SE. HIV, HTLV or AIDS SROL112 0804 Exclusion-ProfessionalLiabiiity SRGLI 13 M 04 Excluston-Pyre_eclLics -- _ I I B19 113110 04L COUPS' AND LNIUMMENT APIP FARDIF TO MIS CURERl �� �3��- ss ltD sllGstittltl far Pli7 '=l _ y.. - � d EO.0: Iilfly M na Y ] _ rvm s — 0rVE 2 MK�LR .i.w .3 4.. • A� MC MEMBER CERTIFICATE American Alternative Insurance Corporation COMMERCIAL GENERAL LIABILITY 555 College Road Cast Princeton N.J.08543.5212 Schedule of Additional Insureds: The below entities are added as additional insured(s)to the certificate subject to the scheduled applicable additional insured endorsement. Applicable Additional Insured endorsements include: Form No. Edition Endorsement Title Date CG 20 11 0704 Additional Insured-Lessor of Premises(Describe Leased Premises below.) CG 20 12 0798 Additional Insured-State or Political Subdivision-Permits (Designate State or Political Subdivision Below.) CG 20 15 0704 Additional Insured-Vendors (Describe"Your Product"below.) CG 20 28 0704 Additional Insured-Lessor of Equipment SCHEDULE Form No. Name and Address of Additional Insured: Form No. Name and Address of Additional Insured: CG 20 11 Palm Springs Stadium CG 20 15 1901 E.Bar•isto Rd. Palm Springs,CA 92262 Designation of Premises(Part Leased to You): ("Your Product'): Location of Policyholder Activities CG 20 12 City of Palm Springs CG 20 28 3200 E.Tahquitz Canyon Way Palm Springs, CA 92262 State or Political Subdivision: City This certificate is issued by the program administrator indicated below: Francis L.Dean&Associates,Inc. 1776 S_Naperville Rd.,Bldg-B P.O.Box 4200 Wheaton,IL 60189 (800)745-2409 FAX(800)665-7294 or e-mail a request to 1 olicyLaMean.com Hip-111urizmg Representative:� 1'ranciS L. tDpa t Francis L.Dean Copyright 2004 American Alternative Insurance Corporation. Includes copyrighted material of the Insurance Services Office, Inc,with its permission. SRGL100(O8104) Page 4 of 4 DATE(MMIDDNY) E , :ZQ-1-'C T17 �E' PFILJAB I A IN$'PRANC 02101/06 �1:1 -1 -`III -1- I A J PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE FOR SERVICE CALL: HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR FRANCIS L.DEAN&ASSOCIATES, INC. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW 8001375/0552 COMPANIES AFFORDING COVERAGE WWW.ATHLETIC-INSURANCE.COM COMPANY AMERICAN ALTERNATIVE INSURANCE A CORPORATION INSURED SPORTS AND REC.PROVIDERS RISK PURCHASING GROUP COMPANY NBC/PALM SPRINGS POWER BASEBALL CLUB, E3 INC. COMPANY 1901 E. BARISTO ROAD PALM SPRINGS, CA 92262 COMPANY GERT#76A2GL1021675-01 COVERAGE " z THIS IS TO CERTIFY THAT IMF POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY MO-OfHP HcT;ANTIIMG ANY PEOUTREIVIFNT TPRIlg nR Cnmnn inm OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECTTO RTAI 1�11 c",Oil.I,I-1 i IrrP. I I yFf,I],-irfs' I f ... .. ArrPFCATIF LT-I DL tj I r.. j ..... . ..... rt'l-f Q' I '7R.A.- in H I-1 I -- ---- I h ijilh!ULU flu I I ALYHOmDmii I Lf-"H-LoTY I -I'l,"TLI Hl'w I HHHEL)AU10S I BODILY YIL(JrY rf!'Mlfc� ------- GARACE.LIA61L-i I i ---- I 1---IAtJYAIITC) I I I IDHHd<]HANAUTO ONLY. FAPM Ar.r.[DFMT FAr."ncrn IRRFNr.F I I UMBRELLA f ORIVI I I JACCHEGXHE U.1'.F T:,AN'a%MRELL!%FO...1110-XFP'�COIMP5�'QAT'Okl AND I Hf.L pw (EL FACH ACCIDENT THE PRCIPRIETOW --IIMrI 1 EL DISEASE-POLICY LIMIT PARTNER�ZXECI.Lve 1--� IOTHrR I iuili U, J POLICY L)EDUC-IIBLE:$U.GOPFREA(;nbL)LJILY nqjuRi 9qclp;vqn nr,.('.IIRRF-Nf-.r FARM 01-88)AND COMPANY'S SPECIFIC FORNIS. z-,w zi;iTz D", "j.— FM L'OTIGE TO TH.— _FELT FPPEAlR I-vil 0— —sm-- EUXEPR�-t;Erf:TA-IlV, _7 0 The Palm Springs POWER Baseball Club Inc. has no employees and does not own any vehicles. Andrew Starke President Palm Springs POWER Baseball Club, 5-5-06 Palm Springs POWER Baseball 1901 East Baristo Rd. Palm Springs,CA 92262 Ph(7601 R64-627R•Fax(7601325-7206 Best's Rating Center- Search Results Page 1 Page 1 of 1 k � liww w 1 I ' W jF,") View Ratings:Financial Strength Issuer Credit Securities Advanced Search Other Web Centers: Select One . Search Results Page 1 of 1 1 Rated and non-Rated companies found, results sorted by Company Name Criteria Used: Company Name: Company names starting with american alternative To refine your search, please use our Advanced Search or view our Online Help for more information. New search american altemative :View results starting with: ABC D E F G H IJKLMN O P Q R S T U V W X Y Z RE Company Information Financial Strength Ratings Issuer Credit Ratings Outlook/ Outlook/ x AMB# r Company Name * Rating Implication Long-Term Implication Short-Term Domicile 11574 American Alternative Insurance Corp A Negative a Negative US: Delam (Property/Casualty-Insurance Company) Note: Financial Strength Ratings as of 0510812006 11:41 AM E.S.T. 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Best Worldwide Headquarters,Ambest Road,Oldwick,New Jersey,08858, U.S.A. htip://www3.ambest.com/ratings/RatingsSearch.asp?AltSrc=9 05/08/06