ATTACHMENT A
LEASE AGREEMENT
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CITY OF PALM SPRINGS
AIRPORT LEASE AGREEMENT NO. 25N024
This Airport Lease Agreement (“Agreement”) is made and entered into this 1st day of October, 2025 (“Effective Date”) by and between the City of Palm Springs, a charter city and municipal corporation (“City”) and STRIKE TECHNOLOGY INC DBA WILORCO, a California Corporation (“Tenant”). City and Tenant may be individually referred to as “Party” or collectively as the “Parties”.
RECITALS
A. The City is the owner and operator of the Palm Springs International Airport (“Airport”) located at 3400 E Tahquitz Canyon Way, Palm Springs, CA 92262.
B. Tenant desires to lease property from the City in order to conduct Research and Development Engineering of Solar and Hydroelectric Energy Systems.
NOW THEREFORE, for and in consideration of the mutual representations, warranties, covenants, obligations, privileges, conditions, and agreements set forth in this Agreement, the Parties hereby agree as follows:
1. INCORPORATION OF RECITALS. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. LEASED PREMISES.
2.1 Lease. City hereby leases to Tenant and Tenant leases from City, certain real property located within the City of Palm Springs, County of Riverside, California, as more particularly described in Exhibit “A”, attached hereto and incorporated herein by this reference.
This leased property, as defined herein, is leased to Tenant and referred to in this Agreement as the “Leased Premises”.
2.2 Acceptance of Leased Premises. Tenant accepts the Leased Premises “AS IS” in the current condition and subject to all existing liens, encumbrances, charges, conditions, covenants, easements, restrictions and rights-of-way, if any. Tenant’s acceptance of the Leased Premises constitutes a waiver of any warranty against any defect in regard to workmanship or material of the Leased Premises or other improvements which are a part of the Leased Premises.
City shall have no obligation to maintain or repair any of the leasehold improvements to the Leased Premises, except as may otherwise be expressly provided herein.
3. TERM.
3.1 Term. The Term of this Agreement shall commence on October 1, 2025 and will continue as a month-month tenancy until such time as it is terminated by either Party. Either Party may terminate this Agreement by giving the other party written notice at least sixty (60) days prior to when the Leased Premises are to be vacated. Notwithstanding the foregoing, this Lease Agreement shall automatically terminate on June 30, 2026 if not yet terminated by either Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -2-
Party. Tenant shall, at the expiration of the term of this Agreement, or upon its earlier termination, return the Leased Premises in conformance with Section 15.
4. RENTS, FEES, AND OTHER CHARGES.
4.1 Monthly Rent. The monthly rental for the use and occupancy of the Leased Premises for the Original Term shall be seven hundred and fifty-six dollars ($756) per month.
4.2 Payments. Payment of rents, fees, and other charges shall be made promptly without notice or demand, in legal tender of the United States of America. (a) Payment of rent shall be made by Tenant to City monthly in advance on or before the first (1st) day of each month. The rent for any partial month shall be prorated. (b) Payment of fees and other charges shall be made by Tenant to City monthly on or before the tenth (10th) day of each month for the previous month. (c) Payments of rents, fees, and other charges shall be made by check or money order, payable to City. Payments shall be delivered or mailed to the City of Palm Springs at the following address:
City of Palm Springs
Attention: Department of Finance
PO Box 2743
Palm Springs CA 92263
Payments shall be made without any abatement, deductions, reductions, offsets, or counterclaims of any kind. Any portion of rent not received on or before ten (10) days past the due date, shall be deemed a material default of the terms of this Agreement and a breach. (d) If any check is returned by the bank for any reason, Tenant shall pay a fifty dollar ($50.00) returned check charge, in addition to applicable late fees, until cash, draft or other acceptable form of payment (as specified by the City) is received by the City. In the event of a returned check, the City may demand that payment of the returned check and/or all future payments be made by certified check, cashier’s check, money order or cash.
4.3 Security Deposit. Prior to taking possession of the Leased Premises, Tenant shall deposit (and keep on account throughout the term of this Agreement) with City a security and damage deposit (“Security Deposit”) in the amount of five-hundred dollars ($500) (or the equivalent to two month’s rent whichever is greater) as security for the return of the Leased Premises at the expiration of the term of this Agreement in conformance with Section 15, as well as the faithful, timely, and complete performance of the terms and conditions of this Agreement. (a) The Security Deposit may be used in the event of termination of this Agreement. The Security Deposit may be used to cure any default or breach of this Agreement without prejudice to any other remedies available to City and that City may increase the Security Deposit in the event of default or breach.
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4.4 Late Charges. A late charge equal to ten percent (10%) per month on the unpaid balance for each month the rent is late shall be automatically added to any fees or other charges not received by City by the close of business five (5) calendar days after due and owing. Rent not received on or before ten (10) days past the due date shall be deemed a default of this Agreement. In addition to late charges, City shall be entitled to interest at the State of California judgment rate plus all costs and expenses incurred by City to collect (or attempt to collect) amounts past due, including without limitation, attorney and court fees, costs, and expenses. (a) At the option of the City, rents tendered to the City subsequent to default may be rejected by the City, or accepted by the City, with the appropriate late fees. The City, at its sole discretion, may reject past due payments and consider the lease in breach. Acceptance of any such late charge by City shall in no event constitute a waiver of City’s default with respect to such overdue amount, nor prevent City from exercising any of the other rights and remedies granted hereunder, nor be deemed a waiver of any other existing breach by the Tenant.
5. USE OF THE LEASED PREMISES AND CONDUCT OF TENANT.
5.1 Use of the Leased Premises.
(a) Tenant hereby acknowledges that the principal use of the Airport consists of the operation of a public airport and that all other operations and businesses which are now or hereafter permitted by City, including the use hereunder, must be at all times be compatible with such principal use, as City shall, in its sole discretion, determine. (b) The primary use of the Leased Premises permitted under this Agreement shall be a Research and Development Engineering of Solar and Hydroelectric energy systems.
Tenant shall, continuously and uninterruptedly during the term of this Agreement, conduct its activity, as permitted herein, upon the Leased Premises unless prevented from so doing by strikes, fire, casualty or other causes beyond Tenant's control, except during reasonable periods for repairing, cleaning and decorating the Leased Premises. (i) Parking. Tenant may park up to two (2) vehicles in the parking stalls located on the Leased Premises. Tenant shall register such vehicles with the City prior to utilizing the parking stalls on the Leased Premises. Notwithstanding the foregoing, Tenant shall not park trailers, recreational vehicles, moving trucks, or semi-trailers within the parking stalls located on the Leased Premises without the written permission of the City, which may be withheld in the City’s sole discretion. In the event that Tenant desires to park vehicles in excess of the two (2) vehicle limit or park vehicles that are otherwise prohibited by this Section, Tenant and City may negotiate an additional fee to allow for such parking use. Failure to comply with the provisions of this Section may result in citations or potential towing of vehicles. (ii) Keys. Upon execution of this Agreement, Tenant shall receive a set of keys upon the execution of this Agreement. Tenant will not duplicate any keys, alter any locks or install any new or additional lock or bolt on any door of the Leased Premises without written permission of the City. If a key is lost or stolen, Tenants shall pay a charge of $20 per key incurred in the replacement of the locks and making of new keys.
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(c) Tenant shall, at Tenant's own cost and expense, obtain and maintain all licenses, permits, certificates or other authorizations of any governmental authority having jurisdiction thereover, including, but not limited to, the Federal Aviation Administration (FAA), which may be necessary for the conduct in the Leased Premises of its business operations and activities. Without limiting the generality of the foregoing, Tenant shall comply with all applicable laws, resolutions, codes, rules, orders, directions, ordinances and regulations of any department, bureau or agency or any governmental authority having jurisdiction over the operations, occupancy, maintenance and use of the Leased Premises for the purpose demised hereunder, except for those requiring major alterations to the Leased Premises as distinguished from those relating to furniture, fixtures or equipment of Tenant therein. Tenant shall indemnify and save City harmless from and against any claims, penalties, losses, damages or expenses imposed by reason of Tenant's violation of any applicable law or the rules and regulations of governmental authorities having jurisdiction thereof.
(d) Notwithstanding any other remedies of City hereunder, in the event of a breach of this Section 5.1, Tenant, upon receipt of written notice from City of said breach, shall cure said specified breach within five (5) business days. If cure is not performed within five (5) business days, City, at its option, may terminate this Agreement upon thirty (30) days' written notice. However, if Tenant has undertaken steps to cure within five (5) business days, then City shall not terminate this Agreement unless Tenant fails to diligently complete said cure. In such event, City may terminate this Agreement upon thirty (30) days written notice. Notwithstanding the foregoing, if at any time Tenant's breach has a material adverse effect on the operations of the Airport or creates an emergency situation that, in City's reasonable estimation, presents a risk to public health or safety, Tenant shall immediately commence to cure such breach.
5.2 Restrictions on Use.
(a) Tenant shall not use or permit the use of the Leased Premises for any purpose other than that set forth in Section 5.1 above, and Tenant shall comply promptly with all applicable laws, rules and regulations regarding the use of the Leased Premises, including, but not limited to all rules and regulations promulgated by the FAA. (b) Tenant shall not use or permit the use of the Leased Premises in any manner that will (A) tend to create or permit any waste or nuisance, (B) tend to disturb other tenants or users of the Airport, (C) invalidate or cause cancellation or be in conflict with fire or other hazard insurance policies covering the Airport, or (D) increase the rate of fire insurance for the Airport or of property located therein, over that rate in effect on the Commencement Date hereof. Tenant, at its expense, shall comply with all rules, orders, regulations or requirements of the State and City Fire Code.
5.3 Airport Use. In connection with the ownership and use of the Airport by City, Tenant hereby agrees as follows:
(a) City reserves the right, but shall not be obligated to Tenant, to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of the Airport to standards established by City in City’s sole discretion, together with the right to direct and control all activities of Tenant in this regard.
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(b) This Agreement shall be subordinate to the provisions and requirements of any existing or future agreement between City and agencies of the United States relative to the development, operation or maintenance of the Airport.
(c) It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of any exclusive right within the meaning of Section 308(a) of the Federal Aviation Act of 1958 (49 U.S.C. Section 1349). (d) Tenant shall not make use of the Leased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport, or which might otherwise constitute a hazard. In the event the aforesaid covenant is breached, City reserves the right to enter upon the Leased Premises and cause the abatement of such interference, at the expense of Tenant.
(e) This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has, or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport, or the exclusive or nonexclusive use of the Airport, by the United States during the time of war or national emergency or otherwise.
(f) Tenant shall conform to the Airport Rules and Regulations and FAA safety and security rules and regulations regarding use of the Airport operations area including runways, taxiways, aircraft aprons by vehicles, employees, customers, visitors, etc. in order to prevent security breaches and avoid aircraft incursions and vehicle/pedestrian deviations; will complete and pass an airfield safe driving instruction program when offered or required by the Airport, and will be subject to penalties as prescribed by the Airport for violations of the Airport safety and security requirements.
5.4 Airport Security. Tenant is responsible for maintaining security in and around the Leased Premises or any other area adjacent to or upon the Airport which Tenant has an exclusive right to use or which Tenant otherwise controls. Tenant is further responsible for maintaining security with respect to access to and entry upon Airport operations areas, or other areas of the Airport designated by City from time to time as security areas, by employees, subtenants, contractors, invitees or customers of Tenant or any other person who enters the Airport operations areas at Tenant’s invitation, direction, or authority, whether through or from the Leased Premises or otherwise.
5.5 Hazardous Materials.
(a) Restrictions. Tenant shall not cause or permit any hazardous materials or toxic substances to be brought upon, kept or used in or about the Leased Premises or the Airport by Tenant, its agents, employees, contractors or invitees, without the prior written consent of City. City's consent shall not be unreasonably withheld so long as Tenant demonstrates to City's reasonable satisfaction and covenants to City that such hazardous materials or toxic substances are necessary or useful to Tenant's business and will be used, kept and stored in a manner that complies with all laws relating to any such hazardous materials or toxic substances so brought upon or used or kept in or about the Leased Premises or the Airport. If Tenant breaches the Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -6-
obligations stated in the preceding sentence, or if the presence of hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in contamination of the Leased Premises or the Airport, or if contamination of the Leased Premises or the Airport by hazardous materials or toxic substances otherwise occurs for which Tenant is legally liable to City for damage resulting therefrom, then Tenant shall indemnify, defend and hold City harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Leased Premises or the Airport, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Leased Premises or the Airport, damages arising from any adverse impact on marketing of space in the Airport, and sums paid in settlement of claims, actual attorneys' fees, consultant fees and expert fees), which arise during or after the term of the Agreement as a result of such contamination. This indemnification of City by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions, including regular inspections, or any clean up, remedial, removal or restoration work required or recommended by any federal, state or local governmental agency or political subdivision because of hazardous materials or toxic substances present in the soil or ground water on or under the Leased Premises and/or the Airport. The indemnity, defense and hold harmless obligations of Tenant hereunder shall survive any termination of this Agreement. Without limiting the foregoing, if the presence of any hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in any contamination of the Leased Premises or the Airport, Tenant shall promptly take all actions at its sole expense as are necessary to return the Leased Premises and the Airport to the condition existing prior to the introduction of any such hazardous materials or toxic substances; provided that, City's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions, in City's sole and absolute discretion, would not potentially have any material adverse long-term or short-term effect on the Leased Premises or the Airport.
(b) Definitions. As used herein, the terms "hazardous materials and/or toxic substances" mean (A) any hazardous or toxic substance, material or waste which is or becomes regulated by any local, state or federal government or special district, (B) designated as a "hazardous substance" pursuant to Section 1311 of the Federal Water Pollution Control Act (33 USC Section 1317), (C) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 USC Section 6901, et seq. (42 USC Section 6903), (D) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC Section 9601, et seq. (42 USC Section 9601), (E) defined as a "hazardous waste" or as a "hazardous substance" pursuant to Section 25117 or 25316 of the California Health and Safety Code, (F) substances defined as “hazardous materials” in the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq., (G) any infectious wastes or substances, or (H) petroleum and any by-products thereof.
References herein to specific statutes or laws shall also be references to any amendments of or applicable successor statutes or laws.
6. TAXES AND ASSESSMENTS.
6.1 Tenant recognizes and understands that this Agreement may create a possessory interest subject to property taxes pursuant to Revenue & Taxation Code Section 107.6 and that, if a possessory interest is created, Tenant shall, in accordance with this Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -7-
Section 5, be responsible for payment of property taxes levied against such possessory interest. Any documentary transfer tax assessed upon the creation of a leasehold interest in the Premises under this Agreement shall be paid by Tenant. Tenant hereby expressly acknowledges that City has given Tenant notice that Tenant's possessory interest in the demised premises may be taxed.
Tenant’s initials
7. UTILITIES AND SERVICES.
7.1 Utilities. During the term of this Agreement, Tenant agrees to pay all charges and expenses in connection with utility services furnished to the Leased Premises and to protect City and the Leased Premises from all such charges and expenses. Tenant understands and agrees that the Leased Premises are served by a single meter. Tenant is responsible for paying the City for Tenant's pro rata share, as reasonably determined by City based on the square footage of the Leased Premises, of all shared utilities within ten (10) days after billing by City.
7.2 Tenant acknowledges that City has no obligation to provide utilities except those already furnished as of the date of this Agreement to the Premises or additional utilities. City shall not be liable to Tenant under any circumstances for damages or loss to Tenant's property, injury to person or property, or consequential damages, however occurring, through, in connection with, or incidental to failure to furnish or interruption of any utilities or services.
8. IMPROVEMENTS, REPAIRS AND MAINTENANCE.
8.1 Improvements. No improvement shall be erected, placed, altered or maintained on the Leased Premises unless plans and specifications have been approved in writing by City, at City’s sole discretion. Prior to commencing construction of any building, structure or improvement (not including the internal layout) on the Leased Premises, Tenant shall notify City of the date of commencement and expected completion thereof and shall submit for approval plans and specifications in accordance with applicable rules and regulations of the City.
8.2 Tenant's Obligations to Maintain and Repair. Tenant shall at all times:
(a) Keep and maintain the Leased Premises in a neat, clean, orderly and sanitary condition and undertake all cleaning required to preserve the same in the same condition as when received at the commencement of the Term, less only ordinary wear and tear; (b) Dispose of all garbage, rubbish and waste in a clean and sanitary manner at reasonable and regular intervals;
(c) Keep the exterior of the improvements on the Leased Premises in a reasonably neat and attractive condition, free from waste or debris.
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(d) Properly use and operate all electrical, heating, plumbing, and other fixtures and appliances, and assume all costs incurred in their repair resulting from misuse or abuse;
(e) Not destroy, deface, damage or remove any part of the Leased Premises or permit Tenant’s guest, invitee, or any person acting through, under or on behalf of Tenant to do so, or permit any waste in, on or about the Leased Premises; and (f) Replace any lost or broken furnishings, glass, appliances or equipment which were part of the Premises as of the date hereof.
City shall not be liable to Tenant by reason of any injury to or interference with Tenant's business arising from or connected with the need for or the making of any repairs, alterations or improvements.
8.3 City’s Responsibilities. City shall be responsible for the following:
(a) Subject to Tenant’s responsibilities outlined in Section 8.2, the Landlord shall be responsible for the overall maintenance of the Leased Premises, including the heating, ventilation and cooling systems, plumbing and electrical systems, exterior walls, windows, roof of all buildings on the Leased Premises. At no time shall Landlord be responsible for any repair or maintenance caused by Tenant’s improper, negligent, or reckless use of the Leased Premises. (b) Maintenance obligations assigned to the City under this Agreement shall be carried out by the City’s Department of Maintenance and Facilities (the “Department”).
Maintenance requests shall be made to the Department at (760) 323-8167.
8.4 City's Remedies. In the event Tenant fails to perform its obligations under Section 8.1, City may, pursuant to Section 14.4 of this Agreement, after fifteen (15) days' written notice to Tenant to cure such failure, enter upon the Leased Premises and put the same in good order, condition and repair,
8.5 No City Obligations. City shall have no obligation to make any repairs to the Leased Premises other than as expressly and specifically set forth in this Agreement. Tenant hereby waives any and all rights provided in Sections 1941 through 1942, inclusive, of the Civil Code of California and hereby waives, to the extent permissible, any rights other than statutes or laws now or hereafter in effect which are contrary to the obligations of Tenant under this Agreement, or which place obligations upon City in addition to those provided in this Agreement.
9. RESERVED.
10. RESERVED.
11. INDEMNITY.
11.1 City's Non-liability. City shall not be liable for any loss, damage or injury of any kind to any person or property arising from any use of the Leased Premises, or any part thereof, Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -9-
or caused by any defect in any building, structure or other improvement thereon or in any equipment or other facility therein, or caused by or arising from any act or omission of Tenant or any of its agents, employees, licensees or invitees, or by or from any accident on the Leased Premises or any fire or other casualty thereon, or occasioned by the failure of Tenant to maintain the Leased Premises and all improvements thereto in a safe condition, or arising from any other cause except where caused by the sole negligence or willful misconduct of City, its agents or employees.
11.2 Indemnification. To the fullest extent permitted by law, Tenant shall, at Tenant's sole expense and with counsel reasonably acceptable to City, defend, indemnify, and hold harmless City and City's officers, officials, employees and agents from and against all claims, (including demands, losses, actions, causes of action, damages, liabilities, expenses, charges, assessments, fines or penalties of any kind, and costs including consultant and expert fees, costs of investigation, court costs and attorney’s fees) from any cause, arising out of or relating (directly or indirectly) to this Agreement, the tenancy created under this Agreement, or the Premises, including without limitation:
(a) The use or occupancy, or manner of use or occupancy, of the Leased Premises or buildings by Tenant;
(b) Any act, error or omission, or negligence of Tenant or of any subtenant, invitee, guest, contractor or licensee or Tenant or any subtenant in, on, or about the Leased Premises;
(c) Tenant’s conducting or managing of its business;
(d) Any alterations, activities, work, or things done, omitted, permitted, allowed, or suffered by Tenant in, at, or about the Leased Premises or buildings, including the violation of or failure to comply with any insurance requirements or any applicable laws, statues, ordinances, standards, rules, regulations, orders, decrees, or judgments in existence on the Commencement Date or enacted, promulgated, or issued after the date of this Agreement, and; (e) Any breach or default in performance of any obligation on Tenant’s part to be performed under this Agreement, whether before or during the term of this Agreement or after its expiration or earliest termination.
11.3 This indemnification extends to and includes, without limitation, claims for:
(a) Injury to any persons (including death at any time resulting from that injury);
(b) Loss of, injury or damage to, or destruction of property (including loss of use at any time resulting from that loss, injury, damage, or destruction); and (c) All economic losses and consequential or resulting damage of any kind.
11.4 Tenant’s indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until all claims against City involving any of the Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -10-
indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitations.
12. INSURANCE.
12.1 Required Insurance Coverage. Prior to commencing any work or operations under this Agreement, Tenant at its sole cost and expense and for the Term of this Agreement, all extensions thereof, shall obtain and maintain or shall cause to be obtained and maintained insurance against claims for injuries to persons or damages to property which may arise from or in connection with the activities of Tenant and its agents, employees and contractors, meeting at least the minimum insurance requirements set forth in Exhibit “B”, attached hereto and incorporated herein by this reference, on terms and conditions and in amounts as required by City from time to time and with insurers acceptable to City.
12.2 Tenant shall provide City with certificates of insurance or copies of all policies and such endorsements as may be required by City. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager of the City of Palm Springs (“Risk Manager”).
13. DEFAULT.
13.1 Events of Default. The occurrence of any of the following shall constitute an event of default of this Agreement on the part of the Tenant:
(a) Tenant fails to make the payment of any installment of rent or other sum when due hereunder (“Monetary Default”) within ten (10) days from when due. (b) Failure to perform any obligation, agreement or covenant under this Agreement (“Non-Monetary Default”) and such failure continues for fifteen (15) days after written notice of such failure, or if such Non-Monetary Default cannot be cured within fifteen (15) days, Tenant has not commenced corrective action and prosecuted the same to completion with due diligence, or the Non-Monetary Default is of such a nature that it cannot be cured by any action of Tenant.
(c) Failure to pay any insurance premium, lien, claim, demand, judgment or other charge provided for in this Agreement to be paid or caused to be paid by Tenant at the time and in the manner as provided for in this Agreement.
(d) Failure to maintain the Leased Premises or cause the same to be maintained as provided for in this Agreement.
(e) Abandonment or vacation of the Leased Premises for a continuous period in excess of thirty (30) days without payment of rent. Tenant waives any right to notice Tenant may have under Section 1951.3 of the Civil Code of the State of California, the terms of this Section 13.1 being deemed such notice to Tenant as required by said Section 1951.3. (f) Default by Tenant under the terms of any mortgage on the estate of Tenant.
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(g) The filing of any voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. If under applicable law, the trustee in bankruptcy or Tenant has the right to affirm this Agreement and continue to perform the obligations of Tenant hereunder, such trustee or Tenant shall, in such time period as may be permitted by the bankruptcy court having jurisdiction, cure all defaults of Tenant hereunder outstanding as of the date of the affirmance of this Agreement and provide to City such adequate assurances as may be necessary to ensure City of the continued performance of Tenant's obligations under this Agreement. (h) The attachment, execution or other judicial seizure of all or substantially all of Tenant's assets or Tenant's leasehold of the Leased Premises, if such attachment or other seizure remains undismissed or undischarged for a period of fifteen (15) days after the levy thereof.
(i) The admission by Tenant in writing of its inability to pay its debts as they become due;
(j) A general assignment by Tenant for the benefit of creditors. (k) Failure to maintain compliance with applicable laws.
14. REMEDIES IN EVENT OF DEFAULT.
14.1 Termination. In the event of the occurrence of any event of default, City shall have the right to give a written termination notice to Tenant, and on the date specified in such notice, Tenant's right to possession shall terminate, and this Agreement shall terminate unless on or before such date all rent in arrears and all costs and expenses incurred by or on behalf of City hereunder shall have been paid by Tenant and all other events of default of this Agreement by Tenant at the time existing shall have been fully remedied to the satisfaction of City. At any time after such termination, City may recover possession of the Leased Premises or any part thereof and expel and remove therefrom Tenant and any other person occupying the same, including any subtenant or subtenants notwithstanding City's consent to any sublease, by any lawful means, and again repossess and enjoy the Leased Premises without prejudice to any of the remedies that City may have under this Agreement, or at law or equity by any reason of Tenant's default or of such termination. City hereby reserves the right, but shall not have the obligation, to recognize the continued possession of any subtenant. The delivery or surrender to City by or on behalf of Tenant of keys, entry codes, or other means to bypass security at the Leased Premises shall not terminate this Agreement.
14.2 Continuation after Default. Even though an event of default may have occurred, this Agreement shall continue in effect for so long as City does not terminate Tenant's right to possession under Section 14.1 hereof. City shall have the remedy described in California Civil Code Section 1951.4 ("City may continue this Agreement in effect after Tenant's breach and abandonment and recover rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations"), or any successor code section. Accordingly, if City does not elect to terminate this Agreement on account of any event of default by Tenant, City may enforce all of City's rights and remedies under this Agreement, including the right to recover rent Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -12-
as it becomes due. Acts of maintenance, preservation or efforts to lease the Leased Premises or the appointment of a receiver under application of City to protect City's interest under this Agreement or other entry by City upon the Leased Premises shall not constitute an election to terminate Tenant's right to possession.
14.3 Damages After Default. Should City terminate this Agreement pursuant to the provisions of Section 14.1 hereof, City shall have the rights and remedies of a City provided by Section 1951.2 of the Civil Code of the State of California, or any successor code sections.
Upon such termination, in addition to any other rights and remedies to which City may be entitled under applicable law or at equity, City shall be entitled to recover from Tenant: (1) the worth at the time of award of the unpaid rent and other amounts which had been earned at the time of termination, (2) the worth at the time of award of the amount by which the unpaid rent and other amounts that would have been earned after the date of termination until the time of award exceeds the amount of such rent loss that Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent and other amounts for the balance of the Term after the time of award exceeds the amount of such rent loss that the Tenant proves could be reasonably avoided; and (4) any other amount and court costs necessary to compensate City for all detriment proximately caused by Tenant's failure to perform Tenant's obligations under this Agreement or which, in the ordinary course of things, would be likely to result therefrom. The "worth at the time of award" as used in (3) above shall be computed by discounting such amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). If this Agreement provides for any periods during the Term during which Tenant is not required to pay rent or if Tenant otherwise receives a rent concession, then upon the occurrence of an event of default, Tenant shall owe to City the full amount of such rent or value of such rent concession, plus five percent (5%) interest, calculated from the date that such rent or rent concession would have been payable.
14.4 City’s Option to Cure. Notwithstanding the foregoing, if Tenant fails to provide necessary repair and maintenance of the Premises and all improvements thereon, City shall have the right but not the obligation, after notice provided, and failure of Tenant to cure or commence and diligently pursue a cure to such default, to enter the Leased Premises and take all corrective action necessary in the sole judgment of City. Any such entry shall be at the sole risk and expense of Tenant. Tenant shall immediately, upon presentation of a statement therefor, reimburse City for all costs incurred by City in taking such corrective action with interest on said sums from the date of payment by City at the lower of: (A) the highest rate allowed by law; or (B) two points over the prime rate charged from time to time by the Bank of America, or if the Bank of America no longer exists, an equivalent institution. Nothing in this Section shall: (i) require City to take any corrective action on the Leased Premises; (ii) diminish the rights and remedies of City under this Agreement, whether or not City elects to take such corrective action; and (iii) cause a waiver by City of any of its rights and remedies under this Agreement. Any such reentry shall be allowed by Tenant without hindrance, and City shall not be liable in damages for any such reentry, or be guilty of trespass or forcible entry.
14.5 Remedies Cumulative. All of City’s rights, privileges and elections or remedies are cumulative and not alternative, to the extent permitted by law and except as otherwise provided herein.
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14.6 Replacement of Statutory Notice Requirements. When this Agreement requires service of a notice, that notice shall replace rather than supplement any equivalent or similar statutory notice, including any notice required by California Code of Civil Procedure Section 1161 or any similar or successor statute. When a statute requires service of a notice in a particular manner, service of that notice (or a similar notice required by this Agreement) in the manner required by this Section shall replace and satisfy the statutory service-of-notice procedures, including those required by California Code of Civil Procedure Section 1162 or any similar or successor statute.
15. SURRENDER OF LEASED PREMISES.
15.1 Upon expiration or termination of this Agreement, Tenant shall vacate and surrender possession of the Leased Premises to City. If Tenant fails to do so, City may immediately commence eviction proceedings in conformance with applicable law.
15.2 Reversion of Improvements. Unless otherwise stated herein, upon expiration or earlier termination of this Agreement, at City’s option, the ownership of improvements made to the Leased Premises shall transfer and become the property of City. If City elects not to claim such property, Tenant shall remove and/or demolish any and/or all improvements (as designated by City) and return the Leased Premises to its original condition and character, ordinary and reasonable wear and tear excepted.
15.3 In the event that Tenant fails to return the Leased Premises in good condition, City may perform any work necessary to correct deficiencies and deduct the cost of the work from the Security Deposit. If the Security Deposit is insufficient to cover the work performed, Tenant shall be obliged to pay the additional balance to City.
15.4 Tenant shall remove all personal property upon expiration and/or termination of this Agreement. If Tenant fails to do so, City may remove and dispose of all personal property at Tenant’s sole risk, cost, and expense and without any liability to City and deduct the cost from the Security Deposit. If the Security Deposit is insufficient to cover the cost of the removal and disposal of the personal property, Tenant shall be obliged to pay the additional balance to City.
15.5 The Security Deposit or the portion not applied pursuant to the terms and conditions of this Agreement shall be returned to the Tenant without interest no later than thirty (30) calendar days after the expiration of the term of this Agreement provided the Tenant has vacated and surrendered possession of the Leased Premises to City.
16. ASSIGNMENT AND SUBLETTING.
16.1 Restriction of Assignment and Subleasing. Tenant shall not encumber, assign, sublease or otherwise transfer this Agreement, or any right or interest hereunder, or in or to any of the improvements constructed or installed on the Leased Premises, in whole or in part.
16.2 Effect of Failure to Comply. If Tenant attempts to make or allow to be made any subleasing, encumbrance, assignment or other transfer, then any of the foregoing events shall be deemed a breach of the conditions and restrictions of this Agreement, and upon such breach, City Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -14-
may, at its option, terminate this Agreement at once by written notice, and upon such termination this Agreement shall end and be of no further force.
17. RESERVED.
17.1 City's Right to Sell. City shall have the right to sell all of its interest in the Leased Premises and any lease with respect thereto. If City chooses to exercise such right to sell, and whether such sale is to a public entity or non-public entity, City shall conduct the sale in accordance with the legal requirements imposed upon a municipality by law.
17.2 City's Release from Liability Upon Sale. In the event of any such sale by City, City shall be and is hereby entirely freed and relieved of all liability under all of its covenants and unaccrued obligations contained in or derived from this Agreement arising out of any act, occurrence or omission occurring after the consummation of such sale.
18. RESERVED.
19. RESERVED.
20. RESERVED.
21. RESERVED.
22. REQUIRED FAA CLAUSES.
22.1 Non-Exclusive Use.
(a) This Agreement and all of the provisions hereof shall be subject to whatever right the United States Government has now or may have in the future or may acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or non-exclusive use of the Airport by the United States Government during the time of war or national emergency. If any such agreement is executed, the terms and conditions of this Agreement shall be subordinate to the provisions of any agreement between City and the United States relative to the Airport.
(b) It is clearly understood by Tenant that no right or privilege has been granted which would operate to prevent any person, firm, or corporation operating aircraft at the Airport from performing any services on its own aircraft with its own Employees (including but not limited to, fueling, maintenance, and repair) that it may choose to perform. (c) Nothing in this Agreement shall be construed, in any way, as City granting Tenant an exclusive right to engage in any aeronautical activity at the Airport.
22.2 Non-Discrimination.
(a) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises described in this Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -15-
Agreement for a purpose for which a Department of Transportation (“DOT”) program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such Improvements in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said legal requirements may be promulgated or amended from time to time. (b) Notwithstanding any other provision of this Agreement, during the performance of this Agreement, Tenant, for itself, its heirs, successors, and assigns, as part of the consideration of this Agreement does hereby agree, as a covenant running with the land, that: (a) no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of the Leased Premises; (b) in the construction of any Improvements on, over, or under the Leased Premises, and the furnishing of services therein or thereon, no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, or denied the benefits of, such activities, or otherwise be subjected to discrimination; (c) in the breach of any of the above nondiscrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess the Leased Premises and hold the same as if this Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 have been followed and completed, including expiration of appeal rights; (d) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby agree as a covenant running with the land that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such improvements and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said Regulations may by amended.
(c) Tenant will comply with pertinent statues and rules as are promulgated or amended from time to time to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from federal assistance. This provision obligates Tenant or its transferee for the period during which federal assistance is provided or is in the form of personal Property or real Property or interest therein or structures or Improvements thereon. In these cases, this provision obligates Tenant or any transferee for the longer of the following periods: (a) the period during which the Leased Premises is used by the sponsor or any transferee for a purpose for which federal assistance is extended, or for another purpose involving the provision of similar services or benefits, or (b) the period during which City or any transferee retains ownership or possession of the Leased Premises.
(d) Tenant shall not discriminate in any manner against any employee or applicant for employment because of political or religious opinion or affiliation, race, creed, color, national origin, sex, age, or disability and further, Tenant shall include a similar clause in all subcontracts. Tenant agrees City has the right to take such action against Tenant as the government may direct to enforce this provision of this Agreement.
23. MISCELLANEOUS.
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23.1 Compliance with Governmental Regulations. Tenant shall, at its own cost and expense, promptly and properly, comply with and execute, including the making of any alteration to the Leased Premises, all orders, regulations, laws and requirements of all governmental authorities arising from the use or occupancy of, or applicable to, the Leased Premises.
23.2 Holding Over. If Tenant shall hold over the Leased Premises after the expiration of the term hereof with the consent of City, either express or implied, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations hereof, except that Tenant shall pay to City 150% of monthly rent due as of the expiration of the term; terminable on thirty (30) days written notice given at any time by either party; provided, however, that nothing herein contained shall be construed to give Tenant any rights to so hold over and to continue in possession of the Leased Premises after the expiration of the term hereof.
23.3 Reserved.
23.4 Reserved.
23.5 Inspection. City reserves the right for City and City's agents and representatives to enter upon the Leased Premises at any reasonable time upon five (5) days prior written notification for the purpose of attending to City's interest hereunder, and to inspect the Leased Premises.
23.6 Attorneys' Fees. In the event any action is brought by City to recover any rent due and unpaid hereunder or to recover possession of the Leased Premises, or in the event any action is brought by City or Tenant against the other to enforce or for the breach of any of the terms, covenants or conditions contained in this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees to be fixed by the Court, together with costs of suit therein incurred.
23.7 Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Agreement shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof. No delay or omission of City to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Tenant under this Agreement. The various rights and remedies reserved to City herein including those not specifically described in this Agreement shall be cumulative and, except as otherwise provided by California statutory law in force at the time of execution of this Agreement, City may pursue any or all of such rights and remedies whether at the same time or otherwise.
23.8 Reserved.
23.9 Relationship of Parties. The relationship of the parties hereto is that of City and Tenant, and it is expressly understood and agreed that City does not in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise.
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23.10 Time of the Essence. Time is expressly declared to be of the essence of this Agreement.
23.11 Number and Gender. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and the word "person" shall include corporation, firm or association. If there is more than one Tenant, the obligations imposed under this Agreement upon Tenant shall be joint and several.
23.12 Headings and Titles. The marginal headings or titles to the Sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement.
23.13 Governing Law and Venue. This Agreement shall be deemed to have been made in, and shall be construed in, accordance with the statutes and laws of the State of California without regard to choice of law provisions that would cause the application of the law of another jurisdiction, and without regard to conflicts of law principles. Any suit, action or proceeding permitted hereunder or any judgment entered by any court in respect thereof, will be brought in the state courts sitting in Riverside County, California and the Parties hereby expressly submit to the jurisdiction of such courts for the purpose of any such suit, action, or proceeding permitted hereunder.
23.14 Entire Agreement; Amendments. This Agreement, including the exhibits attached hereto and all documents referenced herein, all of which are incorporated herein by reference, contain the entire agreement of the parties hereto with respect to the matters covered hereby, and no other previous agreement, statement or promise made by any party hereto which is not contained herein shall be binding or valid. No amendment or modification to this Agreement shall be effective unless in writing and signed by both City and Tenant.
23.15 Force Majeure. Except as to the payment of rent, neither of the parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in any amount for any delay caused by fire, earthquake, explosion, flood, hurricane, the elements, acts of God, or the public enemy, action or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes, or lockouts or any other cause whether similar or dissimilar to the foregoing, which is beyond the control of such parties and any delay due to said causes or any of them shall not be deemed a breach of or default in the performances of this Agreement.
23.16 Severability. If any provision in this Agreement is held to be illegal, invalid, or unenforceable in full or in part, for any reason, by any court of competent jurisdiction, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid, and enforceable. The illegality, invalidity, or unenforceability of any such provision shall in no way affect any other provisions in this Agreement, provided that the illegality, invalidity, or unenforceability of any such provision does not materially prejudice either Party with regard to the respective rights and obligations of each Party contained in the valid terms and conditions of this Agreement.
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23.17 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
23.18 Notices. Any notice to be given or other document to be delivered by either Party to the other party may be given by personal delivery, generally recognized overnight courier, prepaid, or may be deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed to the Party for whom intended as follows:
To City: City of Palm Springs
3400 E Tahquitz Canyon Way
Palm Springs, CA 92262
To Tenant: Robert Kunesh
Strike Technology Inc
24311 Wilmington Ave
Carson, CA 90745
Either Party hereto may from time to time by written notice to the other party designate a different address which shall be substituted for the one specified above. Notices and documents shall be served upon receipt or, if any notice or other document is sent by registered or certified mail, as provided above, the same shall be deemed served or delivered seventy-two (72) hours after the mailing thereof.
SIGNATURE PAGE TO FOLLOW
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SIGNATURE PAGE TO AIRPORT LEASE AGREEMENT NO. 25N024
BY AND BETWEEN THE CITY OF PALM SPRINGS AND
STRIKE TECHNOLOGY INC DBA WILORCO
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
TENANT:
By: _____________________________ By: _____________________________ Signature Signature
(2nd signature required for Corporation)
Date: ___________________________ Date: ___________________________
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No. ________
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________ City Attorney City Clerk
APPROVED:
By: _____________________________ Date: ____________________________ Scott Stiles
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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-20-
EXHIBIT “A”
DESCRIPTION/DEPICTION OF LEASED PREMISES
2901 East Alejo Road, Building #13, Palm Springs, CA 92262
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EXHIBIT “B”
INSURANCE REQUIREMENTS
Tenant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the this Agreement and shall include their agents, representatives, employees or subcontractors. With respect to General Liability and Errors & Omissions, coverage should be maintained for a minimum of five (5) years after contract completion. The cost of all such insurance shall be borne by the Tenant.
A. Minimum Scope of Insurance
$1,000,000 -- Commercial General Liability
$1,000,000 -- Auto Liability
$1,000,000 -- Worker’s Compensation Insurance
$5,000,000 -- Property Insurance
One Year of Minimum Monthly Rent -- Business Interruption Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Tenant has no owned autos, hired (Code 8) and non-owned (Code 9) autos, with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Property Insurance: Tenant shall maintain not less than $5,000,000 Legal Liability Coverage (ISO Form CP 00 40 or equivalent) on all real property being leased, including improvements and betterments owned by the City, and shall name the City as a loss payee. Tenant shall also provide property insurance on all personal property and betterments and improvements contained within or on the leased premises.
Property insurance shall insure against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision.
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5. Interruption of Business Insurance : Tenant shall, at its sole cost and expense, maintain business interruption insurance by which the minimum monthly rent will be paid to City for a period of up to one (1) year if the premises are destroyed or rendered inaccessible by a risk insured agains t by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements.
6. Cyber Liability Insurance , if the Tenant will provide IT services or software or involve the retention of private, non- public information about third parties , with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Tenant in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limi ted to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
7. Umbrella or Excess Policies may be used by the Tenant to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limi ted to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following for m” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Tenant’s primary and excess liability policies are exhausted.
8. Professional Liability Errors and Omissions insurance for all Professional Services rendered including architecture, engi neering, or design services related to this Agreement.
9. Builder’s Risk Insurance shall be procured by Tenant prior to the commencement of, and throughout the duration of, any construction of improvements or betterments being installed by Tenant on the Property.
B. Minimum Limits of Insurance
Tenant shall maintain limits no less than:
1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, pers onal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C -23-
separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage.
3. Workers Compensation limits as required by California Labor Code and Employer’s Liability with employer liability limits of $1,000,000 per accident; per disease, per employee; coverage shall be endorsed to state carrier waives its rights of subrogation against the City, its officials, employees, agents and contractors.
4. Professional Liability Errors and Omissions: $5,000,000 per claim and $5,000,000 aggregate, coverage to be maintained following completion of work on project for 5 years or, if policy is canceled, extended reporting period to equal the same.
5. Property Insurance: full replacement cost with no coinsurance penalty provision, Business Interruption, Rental Income, All Risk.
6. If applicable, builder’s risk insurance for total replacement value of work completed during any construction of betterments or improvements to City’s site.
C. Deductibles and Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Tenant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
D. Other Insurance Provisions
1. The general liability and automobile policies are to contain, or be endorsed to contain, the following provisions:
a. The City of Palm Springs, its officers by endorsement, officials, employees and volunteers are to be covered as additional insureds with respect to: liability arising out of activities performed by, or on behalf of, Tenant, premises owned, occupied or used by the Tenant, or automobiles owned, leased, hired or borrowed by the Tenant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officer, officials, employees or volunteers.
General liability coverage can be provided in the form of an endorsement to the Tenant’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
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b. The Tenant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees and volunteers. For any claims related to this Property, the Tenant’s insurance coverage shall be primary and non- contributory insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, or volunteers shall be excess of the Tenant’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.
c. Any failure to comply with reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to the City, its officers, officials, employees or volunteers.
d. Coverage shall state that the Tenant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
2. Workers’ Compensation and Employers’ Liability
Coverage shall contain a waiver of subrogation by endorsement in favor of the City, its officials, employees, agents and contractors.
3. Builder’s Risk
City shall be named as a loss payee on any Builder’s Risk policy to the full extent allowable and for which the City’s insurable interests may appear.
4. All Coverages
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days’ prior written notice has been given to the City; except that ten (10) days’ prior written notice shall apply in the event of cancellation for non-payment of premium.
5. Waiver of Subrogation
Tenant hereby grants to City a waiver of subrogation which any insurer may acquire against City, its officers, officials, employees, and volunteers, from Tenant by virtue of the payment of any loss. Tenant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Tenant, its employees, agents, and subcontractors.
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6. There shall be no endorsement reducing the scope of coverage required above unless approved by the City’s Risk Manager.
7. If the Tenant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Tenant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
E. Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A:VII.
F. Verification of Coverage
Tenant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Tenant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Proof of insurance shall be either emailed in pdf format to:
[email protected] or mailed to the following postal address (or any subsequent email or postal address as may be directed in writing by the Risk Manager):
City of Palm Springs
Attention: Risk Manager
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
G. Subconsultants/Subcontractors
Tenant shall require and verify that all subcontractors relating to this Agreement maintain insurance meeting all the requirements stated herein, and Tenant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.
H. Review of Coverage
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These insurance requirements shall be subject to periodic review by City’s Risk Manager.
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Should the Risk Manager require any change in any coverage such change shall be communicated in writing to Tenant and Tenant shall comply with the said change within thirty (30) days following the date of receipt of the notice.
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