FACILITY USE AGREEMENT

SAN JOSE CONVENTION & CULTURAL FACILITIES

THIS FACILITY USE AGREEMENT (this "Agreement"), dated, as of __________, is entered into by and between the City of San José, a municipal corporation of the State of California ("City"), and __________, ("Client").

RECITALS

A. City is the owner and operator of the San José McEnery Convention Center, Civic Auditorium, Parkside Hall, California Theatre, Center for the Performing Arts, Montgomery Theater, and ancillary plazas and parking facilities (the "Facility").

B. Client desires to utilize some or all of the Facility for the event ("Event") described on the Summary Pages attached to this Agreement and incorporated herein ("Summary Pages"). "Show Days" shall mean the days on which a particular Event takes place. "Move‑in Days" or "Move‑out Days" shall mean the move‑in and set up days prior to an Event and the disassembly and move‑out days after an Event. Such utilization shall occur on the Show Days, Move‑In Days and Move‑Out Days identified in the Summary Pages (collectively referred to as "Event Days").

C. The City has determined that the Event will bring many benefits to the City.

D. City and Client desire to memorialize their agreement regarding Client's use of the Facility for the Event.

AGREEMENT

NOW, THEREFORE, in consideration of the following terms, conditions, and covenants, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Client agree as follows:

1. TERM. This Agreement shall not be effective until both Client and City have executed this Agreement and the Summary Pages ("Effective Date"), and, subject to the terms and conditions of this Agreement, shall have a term (the "Term") commencing on the Effective Date and continuing until the last Move‑out Day set forth on the Summary Pages, unless earlier terminated pursuant to this Agreement. Client's obligation to pay any amounts owed to City hereunder and to abide by the terms of this Agreement, remain in effect until all of such obligations are fulfilled, even if the Event has been completed and Client has moved all of its property out of the Facility.

For purposes of this Agreement, the term "Director" shall mean the Director of the City's Department of Conventions, Arts and Entertainment, or such other person as may be designated by the City Council or the City Manager from time to time to exercise functions equivalent or similar to those now exercised by the Director. The term Director also includes any person designated by the Director of Conventions, Arts and Entertainment to exercise rights and/or obligations of the Director under this Agreement.

2. FEES AND CHARGES

A. For each Event Day identified on the Summary Pages, Client shall pay City in accordance with Section 5 the amount(s) identified on the Summary Pages ("Facility Use Fee"). Client understands that the amount of the Facility Use Fee set forth on the Summary Pages is a minimum amount, based upon representations by the Client as to the amount of exhibit space needed by Client, the number of show days and the number of hotel rooms to be generated by the Event, and may be adjusted as set forth in Section 2B below.

Client shall also pay when due other fees, charges and amounts due under this Agreement as established by resolution of City Council, as such rates may be modified by City Council. For example, Client shall owe additional fees for use of the Facility after midnight and/or prior to 6:00 A.M. unless Client has obtained the Director's prior consent. Client shall also owe additional fees for exclusive services provided by City, as noted in Section 20 of this Agreement. Other nonexclusive charges may include, but are not limited to, the following services and equipment: stage lighting equipment, sound equipment, portable staging, follow spotlights, piano, tables, chairs, movie screens, and trash removal.

Exhibit Space is space designated as Exhibit under the heading Function on the Summary Pages. Exhibit Space may be used for demonstration of products related to the Event, or information regarding products or services related to the Event, via booths or demonstration areas.

3. PERMISSION TO OCCUPY. With respect to each Event described on the Summary Pages, City grants Client permission to occupy those portions of the Facility described on the Summary Pages at the times set forth on the Summary Pages. Client shall also be granted non‑exclusive access to adjoining corridors and restrooms, as designated by Director. Director may authorize Client to enter the Facility to begin set up of the Event a few hours prior to the times set forth on the Summary Page, if the space is not otherwise utilized and Director determines that such authorization is warranted. Client agrees to be bound by the terms of this Agreement if Client enters the Facility prior to the times set forth on the Summary Pages, or if Client remains in the Facility after such times.

Notwithstanding any term hereof to the contrary, this Agreement is not intended to lease or to grant to Client any interest in the Facility. This Agreement merely evidences Client's authorization to use the specified portions of the Facility on the dates set forth on the Summary Pages, subject to the terms and conditions of this Agreement. This Agreement does not grant Client the right to use or occupy any other portion of the Facility or any other facility comprising the San José Convention and Cultural Facilities. Furthermore, nothing in this Section 3 shall be construed to allow Client to enter or occupy the Facility at any time other than the times set forth on the Summary Page or unless authorized by Director in writing.

4. EVENT RESERVATION AND CONFIRMATION. Client agrees and understands that by executing this Agreement that it is committed to run the Events on the dates specified on the Summary Pages and otherwise in compliance with this Agreement.

5. PAYMENT. The Facility Use Fee shall be paid on the dates set forth on the Summary Pages. If Director determines, after review of actual use of the Facility, that Client owes additional amounts for services, or equipment used by Client in connection with the Event, Client shall promptly pay such additional amounts.

Any invoiced fees and charges are due and payable by Client on or before the thirtieth (30th) day after Client’s receipt of City’s written invoice and shall be deemed delinquent if not received by City on or before such date. In the event that City does not receive payment of the Facility Use Fee, or any portion thereof, or any other fee or charge within ten (10) calendar days of the due date, Client shall pay interest thereon from the due date until the date that full payment is received ("payment date") at a rate equal to 12% per annum or, if such interest rate shall be deemed illegal, at the maximum interest rate then allowed by law. Failure of Client to pay such overdue amount, plus interest within ten (10) business days of the date of City's notice of such overdue amount, shall be an Event of Default. As specified on the Summary Pages, the Initial Payment must be made on or before the Response Date, without further notice from City, in order for City to execute this Agreement and incur obligation under this Agreement.

Any payments due hereunder shall be payable in lawful money of the United States, to the City of San José, Accounts Receivable, Convention and Cultural Facilities, 408 Almaden Blvd., San José, CA 95110, or to such person or at such place as City may designate from time to time in writing, free from all claims, demands, set‑offs, or counter‑claims of any kind against City.

6. INSURANCE. For each Event Day identified on the Summary Pages, Client shall obtain and maintain all of the minimum insurance requirements set forth in Exhibit A, at its sole cost and expense.

7. INDEMNITY AND WAIVER OF CLAIMS. Client agrees to defend, indemnify and hold harmless City, its officers, agents and employees from and against any and all claims, demands, suits, causes of action, or liabilities incurred by City, its officers, agents or employee, arising from the Event (including, without limitation, any claim by any Exhibitor at the Event) or as a result of Client's acts or omissions under this Agreement or any act or omission of Client's officers, agents, employees, contractors (including independent contractors), exhibitors, registrants or other persons attending the Event with the express or implied permission or invitation of Client, except as may arise from the negligence or willful misconduct of City, its officers, agents, contractors or employees. In an action or claim against City in which Client is defending City, City shall have the right to approve legal counsel providing City's defense and such approval shall not be unreasonably withheld.

Client further waives all claims or causes of action against City, its officers, agents, or employees which it may now or hereafter have for loss of or damage to property and for injuries to or death of persons on or about the Facility, from any causes arising at any time except as may arise from the negligence or willful misconduct of City, its officers, agents, contractors or employees. Nothing in this Section 7 limits the waiver of claims by Client for interruption or termination of the Event, as set forth in Section 11. Client's obligations under this section shall survive expiration or earlier termination of this Agreement.

8. WORKERS' COMPENSATION INSURANCE. Client certifies that it is aware of the provisions of the Labor Code of the State of California, which require every employer to be insured against liability of Workers' Compensation or to undertake self‑insurance in accordance with the provisions of that code, and certifies that it will comply with such provisions before commencing any activities in connection with this Agreement.

9. ASSIGNMENT/SUBCONTRACTING. Client shall not assign, transfer or subcontract its interest in this Agreement, including, without limitation, any of the rights and privileges granted to Client hereunder or its obligations hereunder, to any other person, organization, or corporation. Any attempt to assign, transfer or subcontract such interest may, at City's option, terminate this Agreement.

Notwithstanding the foregoing, Client may assign this Agreement, with the prior written consent of the Director whose consent will not be unreasonably withheld, to a subsidiary or affiliate, to a divisional entity or joint venture entity, to a corporation into which it is merged or if acquired by an entity which acquires all or substantially all of the assets of Client or the Event as a going concern, or to any entity, that directly or indirectly, controls, is controlled by or is under common control with Client.

10. SCHEDULING. Unless otherwise specified, in writing, the Director shall have the right to schedule other similar events as may be determined by the Director at any time before or after the dates of this Agreement.

11. INTERRUPTION OF EVENT/UNAVAILABILITY OF FACILITIES

A. Interruption or Termination; Force Majeure. If (i) the Facility is damaged so that all practical use of the Facility by Client is prevented or (ii) the City Manager or Director determine that closure of the Facility is necessary in the interest of public health, safety or welfare, or (iii) all practical use of the Facility by Client is prevented by strikes against the City (but not strikes against Client or against any person admitted to the Facility by Client) or by fire, casualty, Acts of God, national emergency, by governmental directive to City or by default of a prior occupant, then City or Client may cancel this Agreement upon notice to the other. In that event, neither party shall have any claim against the other by reason of cancellation. However, if cancellation occurs prior to the Event dates, City shall refund any part of the Facility Use Fee paid by the Client. If the cancellation occurs after the Event dates begin, the Facility Use Fee shall be reduced in the same proportion, which the elapsed time period bears, to the total Event Dates.

B. Limit of City's Liability. Client agrees and acknowledges that City's liability for any termination, interruption or other impairment of the Event for any reason (including, without limitation, City's negligence), other than City’s willful misconduct or unlawful acts shall:

(1) be limited to the fees and charges paid by Client to the City for use of the Facility for such Event; and

(2) not include any lost revenue, incidental or consequential damages, or other claims, known or unknown, arising from such termination, interruption, or other claims, known or unknown, arising from such termination, interruption, or other impairment of the Event.

C. Full Settlement and Release. Client's acceptance of any refunded or of any adjusted fee or charge, shall be deemed a full waiver, release and settlement of any claims against City, whether known or unknown, resulting from the termination, interruption or impairment of the Event, or with respect to failure to provide such service or equipment (including, without limitation, due to City's negligence). City's refund of any fee or charge or reduction of any fee or charge shall not be deemed an admission of liability on the part of the City, nor shall it modify or increase the limitation of City's liability hereunder.

Client certifies that he or she has read the following statement of California Civil Code Section 1542:

A general release does not extend to claims, which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Client hereby waives application of California Civil Code Section 1542 and acknowledges that this means that if he or she should suffer any additional injuries, damages, or losses arising out of the events described in this Section 11 but of which Client is not currently aware and which if known would materially affect Clients decision to execute this release, he or she will not be able to make any claim for those injuries, damages or losses.

The terms of this Section 11 shall survive expiration or earlier termination of this Agreement.

12. EXPIRATION AND TERMINATION. Upon the expiration or termination of this Agreement, and upon the termination of any Event authorized by this Agreement, Client shall quit the Facility, and return to the Director all equipment procured from City or Director. Client shall remove from the Facility, or any part thereof, all the property, goods and effects belonging to Client or caused by Client to be brought upon such premises. If any such property is not removed from the Facility by the end of the last Move‑out Day, then the Director may make arrangements to store the same and Client shall pay a reasonable fee for such storage including all other expenses incurred therewith, provided, however, that if Client fails to redeem such property after such last Move‑out Day, then City may sell such property, in compliance with laws, at auction or otherwise, for said storage fees and expenses.

13. TERMINATION

A. Events of Default. An event of default shall occur under this Agreement upon the occurrence of any of the following events (severally "Event of Default" and collectively "Events of Default"):

(1) Client shall have failed to pay when due any fee, charge or obligation of Client requiring the payment of money under the terms of this Agreement or any other agreement between City, provided that City shall send Client a notice of the overdue amount and Client may cure the payment default if Client pays the full amount overdue within 10 days of the notice of overdue amount;

(2) Client shall have violated the provisions of Sections 9, 19, 20 or 21 of this Agreement; or

(3) Client shall have failed to maintain any insurance required under Section 6 of this Agreement; or

(4) Any representation or warranty made by Client hereunder shall have been false or misleading in any material respect as of the date on which such representation or warranty was made; or

(5) Client shall have failed to perform any material term, covenant, or condition of this Agreement to be performed by Client, other than those specifically referred to in this Section 13, and Client shall have failed to cure same diligently after written notice from City; or

(6) Client shall have failed to perform any material term, covenant or provision required to be performed by Client under any other agreement between City and Client for use of the Facility; or

(7) Client failed to run an event in any City‑owned facility (including the Facility) substantially in conformance with all terms and conditions of the authorization granted by City or such event substantially differed from the representations made to City. Failure of an Event or the Event to substantially conform may include canceling the Event or by materially changing the size, character or subject matter of the Event without the prior approval of City; or

(8) Client becomes insolvent, or takes the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy, or a petition or answer seeking an arrangement for its reorganization, or the readjustment of its indebtedness under the Federal bankruptcy laws, or under any other law or statute of the United States or of any State thereof, or consent to the appointment of a receiver, trustee, or liquidator of any or substantially all of its property; or

(9) A petition under any part of the Federal bankruptcy laws, or an action under any present or future insolvency law or statute, is filed against Client and shall not be dismissed within thirty (30) days after the filing thereof; or

(10) Client shall cancel the Event for reasons other than those granted in Section 11.

B. CANCELLATION FEE/LIQUIDATED DAMAGES

(1) THE PARTIES HERETO AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGE TO THE CITY IF CLIENT WERE TO TERMINATE THIS AGREEMENT PRIOR TO EXPIRATION OF THE TERM OR WERE OTHERWISE TO BREACH ITS COMMITMENT TO HOLD THE EVENT AT THE FACILITY. IN ADDITION TO THE FACILITY USE FEES FOR THE EVENT, CLIENT ACKNOWLEDGES THAT CITY EXPECTS TO RECEIVE OTHER BENEFIT FROM CLIENTS EVENT, WHICH MAY INCLUDE WITHOUT LIMITATION, POSITIVE EXPOSURE FOR THE CITY AND THE FACILITY, LOCAL BUSINESS REVENUES GENERATED BY EVENT ATTENDEES, AND REVENUES FROM FOOD AND BEVERAGE PROVIDED FOR THE EVENT. ALSO, CITY WOULD INCUR ADDITIONAL STAFF AND ADMINISTRATIVE EXPENSE IN REBOOKING THE FACILITY. THE PARTIES MUTUALLY AGREE THAT LIQUIDATED DAMAGES SET FORTH IN THIS SECTION ARE ACCEPTABLE TO EACH PARTY AND ARE A REASONABLE ESTIMATE OF CITY'S LOSS IF CLIENT FAILS TO HOLD THE EVENT AS PROVIDED HEREIN. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY ARE REPRESENTED BY COUNSEL IN NEGOTIATING THIS AGREEMENT.

BY PLACING THEIR INITIALS BELOW, CITY AND CLIENT ACKNOWLEDGE THAT THE AMOUNTS SET FORTH BELOW HAVE BEEN AGREED UPON AS THE PARTIES' REASONABLE ESTIMATE OF CITY'S DAMAGES IN THE EVENT OF CLIENTS FAILURE TO HOLD ONE OR MORE CONFERENCES, AS PROVIDED IN THIS AGREEMENT.

"CLIENT" "CITY"

By: ________________________ By: ________________________

(2) Client agrees to pay to City the following cancellation fee as liquidated damages if Client fails to hold the Event at the Facilities as provided in this Agreement:

(a) If Client delivers to City written notice of termination of the Event more than Eighteen (18) months prior to the first scheduled Move‑in Day of such Event, Client shall pay City the 25% of the Facility Use Fee set forth on the Summary Pages; and

(b) If Client delivers to City written notice of termination of the Event more than Twelve (12) months but less than Eighteen (18) months prior to the first scheduled Move‑in Day of such Event, Client shall pay to City the 50% of the Facility Use Fee set forth on the Summary Pages.

(c) If Client delivers to City written notice of termination of such Event less than Twelve (12) months prior to the first scheduled Move‑in Day of such Event, Client shall pay City or 100% of the Facility Use Fee set forth on the Summary Pages.

No cancellation fee shall be due from Client if City terminates this Agreement pursuant to Sections 11A or 11B nor if Client terminates this Agreement for City's material breach.

(3) Time for Payment of Liquidated Damages. Client shall pay the cancellation fee set forth above no later than thirty (30) days after the date of notice of cancellation or the last scheduled Move‑out Day of the canceled Event, whichever occurs first. Any payments received by City may be applied by City toward the cancellation fee owed pursuant to this Section. Client shall not receive credit for interest on any such amounts.

(4) Remedies for Other Breach of the Agreement. Upon any Event of Default other than Client's failure to hold the Event, City shall have all remedies available at law or in equity or otherwise under this Agreement including, without limitation, termination of this Agreement, to which City may resort cumulatively, or in the alternative and at its election. Damages for Client's breach shall include, without limitation, the Facility Use Fees set forth on Summary Pages.

14. OPPORTUNITY TO CURE. Prior to taking any action on account of a breach, which in the good faith judgment of City may be cured by Client, City shall provide to Client oral or written notice, as is practical under the circumstances, of the breach and afford to Client such opportunity, as may be practicable under the circumstances, if any, to correct such breach. However, no failure to give such notice or opportunity shall impair the rights of City.

15. NOTICES. All notices and demands which may or are required to be given to either party to the other hereunder shall be in writing and shall be deemed to have been fully given when either delivered personally, faxed, e-mailed or deposited in the U.S. mail, postage prepaid, to Client or City at the addresses set forth in the Summary Pages or any other address subsequently noticed in writing by either party.

16. MUTUAL WAIVER OF BREACH. The waiver by any party to this Agreement of a breach of any provision of this Agreement shall not be deemed a continuing waiver or a waiver of a subsequent breach of that or any other provisions of this Agreement.” This language is similar to Anaheim’s.

17. CONTINUING REPRESENTATION AND COMPLIANCE. Until Client has discharged each of its obligations under this Agreement, (i) each representation of Client shall be deemed to be reasserted as true and correct on a continuous basis by Client; and (ii) Client shall be deemed to represent to City that it is at all times in compliance with all applicable terms and conditions of this Agreement.

18. CHANGE IN CIRCUMSTANCES. Client shall promptly notify City of the occurrence of any Event of Default, including, without limitation, the occurrence of any material event or change in circumstances which renders inaccurate any representation or assertion made to City or which renders Client in violation of any other term or provision of this Agreement. Likewise, City shall promptly notify Client of any material change in the condition or availability of the Facility, equipment or services that City has agreed to provide to Client under this Agreement.

19. COMPLIANCE WITH LAWS AND REGULATIONS

A. Americans with Disabilities Act. Unless caused by alterations or changes made by Client, including Client's agents, representatives, employees, contractors or subcontractors, or caused by Client's (including Client's agents, representatives, employees, contractors or subcontractors) negligence or willful misconduct, City shall be responsible for compliance with Title II of the Americans with Disabilities Act ("ADA") regarding the following fixtures: (i) structural fixtures, including the Facility's elevators and (ii) any doorway of the Facility or any part of the Facility located outside of the exhibit halls and meeting rooms used by Client. Nothing herein shall create any obligation on City not required under Title II of the ADA, including without limitation, any retrofit or modification of such fixtures.

For each Event covered by this Agreement, Client shall be responsible for complying with the ADA in connection with (i) setting up and running the Event, including, without limitation, setting up exhibits, seating and access ways in an accessible manner and otherwise removing physical barriers created in connection with the Event, (ii) providing auxiliary aids and services where necessary to ensure effective communication to individuals with disabilities who participate or desire to participate in the Event, (iii) ensuring that exhibitors at the Event, if any, and Client's agents, representatives, employees, contractors and subcontractors each comply with the ADA, and (iv) modifying Client's (and Client's exhibitor's) policies, practices and procedures, as necessary, to enable individuals with disabilities to participate equally in the Event. City's approval of any aspect of Client's activities under this Agreement shall not be deemed or construed in any way as a representation that such item, activity or event complies with the ADA.

B. Copyright Law. No copyrighted musical composition shall be played or sung, whether amplified, televised, in the form of a mechanical recording or personal rendition, or otherwise, in connection with any use of the Facility, unless Client shall have first obtained all approvals and paid any license fee or other fee required by the copyright owner. By entering into this Agreement, Client shall indemnify City and its officers and employees and save them free and harmless from and against any and all liability and responsibility whatsoever for any infringement of and/or other violation of the right of any such copyright owner under any copyright law.

C. Federal, State and Local Laws. Client shall comply and Client shall ensure that its officers, employees, agents, contractors (including independent contractors), exhibitors, registrants, and Events comply with all federal, state and local laws, ordinances and regulations now or hereinafter in effect, and obtain all permits and licenses, bonds and insurance required for conducting any Event. Client shall take all steps reasonably achievable to ensure that its officers, agents, employees, contractors (including independent contractors), subcontractors, exhibitors, registrants and other persons attending the Events, comply with any rules and regulations regarding use of the Facility established by the Director, as amended from time to time, and with the instructions of Director or authorized City employees.

D. Illegal Activity. No performance, exhibition or entertainment, which is illegal, shall be given or held at the Facility. Client covenants that Client, its officers, agents, contractors (including independent contractors), subcontractors, employees, and exhibitors shall not engage in any illegal activity, or permit any of the foregoing persons to engage in any illegal activity, in connection with any performance, exhibit or entertainment at an Event.

E. Liens. Client shall keep the Facility free of any liens arising out of any activity at the Facility or materials furnished or obligations incurred by Client in connection with any such activities. Client shall notify City at least ten (10) business days prior to the commencement of any work to be performed or materials to be furnished at the Facility which could give rise to any such lien, and shall post any bonds as required by City. City shall have the right to post and keep on the Facility any notices that may be required by law or which City may deem proper for the protection of City and/or the Facility from such liens.

F. No Smoking. No smoking is permitted in the Facility.

G. Nondiscrimination. Client shall not discriminate in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin in connection with or related to the Event or with the use of the Facility.

H. Payment of Taxes

(1) Payment by Client. Payment of all Federal, State, County and City taxes in connection with the Event shall always be the liability and responsibility of Client. If Client fails to pay any taxes owed in connection with the Event, Director may deduct such taxes from any amounts to be paid by City to Client, if any, and pay them over to the proper representatives of the Federal, State, City or other units of government.

(2) Possessory Interest Subject to Taxation. Client recognizes and understands that this Agreement may, but is not intended to, create a real property possessory interest that may be, but is not intended to be, subject to real property taxation and that Client may be subject to the payment of real property taxes levied on such interest. No such possessory interest tax, or any other tax by any governmental entity, shall in any way reduce or substitute for the charges or fees required to be paid as a condition of this Agreement or as otherwise required by City. Client agrees to pay all such taxes when due.

Possessory interest assessments are made by the County of Santa Clara, Office of the County Assessor located at 70 West Hedding Street, San José, CA 95110‑1771.

20. PUBLIC SAFETY. Client agrees that at all times it shall conduct its activities, and Client shall ensure that its officers, agents, employees, contractors (including independent contractors), subcontractors and exhibitors conduct their activities, with full regard to public safety, and shall observe and abide by all applicable regulations, now in effect or as amended or promulgated from time to time, and requests by City and duly authorized governmental agencies responsible for public safety.

21. HAZARDOUS MATERIALS. Client shall not use or permit flammable materials such as bunting, tissue paper, crepe paper, or other flammable items for decorations; and all other materials used for decorative purposes must be treated with flame‑proofing and approved by the City's Fire Department. In addition, Client shall not, without the prior written consent of the Director, put up or operate any engine or motor at the Facility or use oils, burning fluids, camphene, kerosene, naphtha, gasoline, or any other flammable chemical, for mechanical or any other purposes, or any agent other than electricity for illuminating any part of the Facility. Subject to the foregoing, Client shall restrict the use of Hazardous Materials at the Facility to those kinds of materials in small quantities that would be normally expected in conducting the activities permitted under this Agreement. Such Hazardous Materials shall only be used in a safe and prudent manner and Client shall take all necessary precautions to prevent releases of Hazardous Materials. Under no circumstances shall Client store, dispose or permit storage or disposal of any Hazardous Materials at the Facility. Client shall comply with all federal, state, and local laws, ordinances, and regulations concerning environmental laws and Hazardous Materials (including, without limitation, City's Hazardous Materials Management Program), and Client shall be responsible for reporting any Hazardous Material releases to the appropriate public agencies. Client shall immediately notify the Director of any release. At Client's sole cost and expense, any release of a Hazardous Material or danger of release of a Hazardous Material shall be corrected immediately. At the sole discretion of City, City may close the Facility without abatement for fees due to City, until such release or danger of release of a Hazardous Material is removed.

Client shall be solely and fully responsible and shall indemnify and hold City harmless from and against all loss, damage, liability (including all foreseeable and unforeseeable consequential damages) and expense (including, without limitation, the cost of any required clean‑up and remediation of the Hazardous Materials) arising as a result of the presence or clean‑up of Hazardous Materials at the Facility caused in whole or in part by Client. Client's obligations under this Section shall survive the expiration or earlier termination of this Agreement.

As used herein, the term "Hazardous Material" shall mean any substance or material which has been determined by any state, federal or local government authority to be capable of posing risk of injury to health, safety, or property including all of those materials and substances designated as hazardous or toxic by the U.S. Environmental Protection Agency, the California Water Quality Control Board, the U.S. Department of Labor, the California Department of Industrial Relations, the California Department of Health Services, the California Health and Welfare Agency in connection with the Safe Water and Toxic Enforcement Act of 1986, the U.S. Department of Transportation, the U.S. Department of Agriculture, the U.S. Consumer Product Safety Commission, the U.S. Department of Health, Education and Welfare, the U.S. Food and Drug Administration or any other governmental agency now or hereafter authorized to regulate materials and substances in the environment. Without limiting the generality of the foregoing, the term "Hazardous Material" shall include all of those materials and substances defined as "Toxic Materials" in Sections 66680 through 66685 of Title 22 of the California Code of Regulations, Division 4, Chapter 30, as the same shall be amended from time to time.

22. EXCLUSIVE SERVICES. City reserves unto itself or its assigned agent the sole right to provide certain services at the Facility on an exclusive basis, including but not limited to the following:

A. Advertising Displays. City or its assigned agent will provide all advertising in permanently mounted display cases and restrooms.

B. Food & Beverage Services. City or its assigned agent will provide all catering and retail sale of food and/or beverage services.

C. Networking Infrastructure. City or its assigned agent has the exclusive right to use the Network infrastructure systems, and services necessary to provide high-speed local and wide-area network connectivity services that are made available for a fee to clients at or from the facilities through the SJCC Network. Notwithstanding, Clients may install and manage their own temporary networks.

D. Parking Lots and Check Rooms. City or its assigned agent will operate the parking lots and any checkrooms provided.

E. Retail Sales & Services. City or its assigned agent will operate all retail outlets including but not limited to shoeshine services, gift shops and newsstands, and will sell or dispense soft drinks, candies, food items, food novelties and/or any related merchandise commonly sold or dispensed at public facilities.

F. Telecommunication Services. City or its assigned agent will sell, rent or otherwise make available all wire and wireless communications (voice and data) equipment including wire and wireless telephone, cable TV, and other voice and data communications equipment and related services.

The Director may, in writing, authorize Client to do any of the aforesaid upon such terms as the Director may deem proper under the circumstances, subject to the provisions of any existing concession contracts in effect at the time of the Event.

23. RULES AND REGULATIONS. City’s General Rules and Regulations, Public Safety Plan, Show Manager’s Guide and Service Contractor’s Guide are hereby incorporated into this Agreement by reference. City reserves the right to change such rules and regulations in writing from time to time and will provide Client with such changed rules and regulations, which shall be binding on Client.

24. MISCELLANEOUS

A. Authorization. If requested by Director, Client shall deliver to City a resolution of its board of directors, or partnership resolution, evidence of officer signatures and incumbency certificate in form and substance satisfactory to City regarding the due authorization, execution and delivery by Client of this Agreement.

B. Consent. Whenever in this Agreement the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. Any consent or approval granted by City of personnel or contractors operating on behalf of Client is for City's benefit only and is not a warranty that such person is qualified to do the work specified.

C. Controlling Law. Except as Federal law may apply, the parties agree that this Agreement shall be governed and construed by and according to the laws of the State of California.

D. Counterparts. This Agreement may be executed in any number of counterparts, each of which counterparts shall be an original, but all of which together shall constitute one and the same instrument.

E. Entire Agreement. The parties acknowledge that there are no agreements or understandings regarding the use of the Facility, written or oral, other than this Agreement, that this Agreement constitutes the full and complete agreement between the parties and shall be controlling in the event of any conflict.

F. Gender. Any reference to the masculine gender shall be deemed to include references to the feminine gender and vice versa.

G. Headings. The section headings are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement.

H. Modification of Agreement. This Agreement shall not be modified or amended, unless the parties each first agree to and approve of such modification or amendment in writing.

I. Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the remaining provisions of this Agreement shall remain in effect.