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A8687 - BOUTIQUE AIRLINES
Contract Company Name Company Contact: Summary of Service Contract Price: Funding Source Contract Term: Contract Administration Lead Department: I Contract Administrator: CONTRACT ABSTRACT Boutique Airlines Brian Kondrad (702)759-9486 Hangar Facilities Lease, $5,000.00 per month Airport Revenues as outlined in the Lease Agreement Revenue December 1, 2020 — December 31, 2023 Aviation Ulises Aguirre / Victoria Carpenter Contract Approvals Council/ Community Redevelopment Agency Approval Date: Minute Order/ Resolution Number: Agreement No: Contract Compliance Exhibits: Yes Signatures: Yes Insurance: Yes Bonds: N/A Hangar Facility Lease Agreement to be assigned by Clerk A 047 Submitted on: February 8, 2021 By: Suzanne M. Seymour ACORtf CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDNYYY) 1 /21 /2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Arthur J. Gallagher Risk Management Services, Inc. 2580 Foxfield Road Suite 203 CNAOMNE. Jeff Gray PNONE 630-584-7552 FAX No : 630-584-2099 RE ess: Jeff Gray@ajg.com Saint Charles IL 60174 INSURERS AFFORDING COVERAGE NAIC q INSURERA: QBE Insurance Corporation 39217 INSURED 13OUTAIR-02 Boutique Air, Inc. and Targaryen, LLC 5 Third Street, Suite 925 INSURER B : Starr Indemnity & Liability Company 38318 INSURERC: The Travelers Indemnity Company of CT 25682 INSURERD: San Francisco CA 94103 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: 1234989728 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MWDD/YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE a OCCUR Y Y 100000770 11/15/2020 .11/15/2021 EACH OCCURRENCE $100,000.000 DAMAGE TO RENTED PREMISES Ea occurrence $1,000,000 MED EXP (Any one person) $ 50,000 PERSONAL & ADV INJURY $ 25,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JECC7' LOC GENERAL AGGREGATE $N/A PRODUCTS-COMP/OPAGG $50,000,000 Hangarkeepers $5,000,000 OTHER: C AUTOMOBILE LIABILITY Y N BA-6N400463-20-91-G 9/15/2020 9/15/2021 Ea BINEDtSINGLELIMIT $1,000,000 X ANYAUTO BODILY INJURY (Per person) $ AWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ X HIRED X NON -OWNED AUTOS ONLY AUTOS ONLY PROPERTY DAMAGE Per accident $ UMBRELLALIAB OCCUR EACHOCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION $ $ B WORKERS COMPENSATION AND EMPLOYERS' LLABILITY Y / N ANYPROPRIETORIPARTNER/EXECUTIVE OFFICER/MEMBEREXCLUDED? � N/A Y 1000002415 10/1/2020 10/1/2021 X PER OTH- STATUTE ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 (Mandatory In NH) dyes, describe under E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS below A Aircraft Liablity Y N 100000747 11/15/2020 11/15/2021 Aircraft Liability $50,000,000 Host Liquor $10,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) Excess Auto Liability - $4,000,000 excess of $1,000,000 provided under the following policy: QBE Insurance Corporation Policy #100000770 Effective Date: 11/15/20 to 11/15/21 This insurance company shall endeavor to provide thirty (30) days advance written notice of cancellation except only ten (10) day notice in the event of cancellation due to non-payment of premium." See Attached... � iIVI .^ic "W�Ucr% tAIVGtLLAIIUN Palm Springs International Airport 3400 E Tahquitz Canyon Way, Suite OFC Palm Springs CA 92262 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: BOUTAIR-02 LOC #: ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Arthur J. Gallagher Risk Management Services, Inc. Boutique Air, Inc. and Targaryen, LLC 5 Third Street, Suite 925 POLICY NUMBER San Francisco CA 94103 CARRIER NAIC CODE EFFECTIVE DATE: THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE As respects liability coverage for "bodily injury", "property damage" or "personal and advertising injury", the definition of Insured in the above stated Policy has been amended to Include the certificate holder, but only with respect to his, her, or its liability because of acts or omissions of the Named Insured in the performance of its ongoing operations or in connection with premises owned by or rented to Named Insured. (QBE Form #QBAV-2004) Coverage is primary and is not contributing with any insurance or self-insurance maintained by the scheduled organization K"WMU -IvI tZwaiu-I/ © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 100000770 QBAV-2004 (05-11) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION (FORM A) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM SCHEDULE Name of Additional Insured Person(s) or Organization(s): As required by the Named Insured Information required to complete this Schedule if not shown above will be shown in the Declarations. SECTION II — WHO IS AN INSURED is amended to include as an additional Insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for bodily injury, property damage or personal and advertising injury caused, in whole or in part, by your acts or omissions or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. All other terms and conditions of this policy remain unchanged. Includes copyrighted material of Insurance Services Office, Inc. with its permission. This endorsement changes the policy to which it is attached and is effective on the date shown below. Endorsement Effective: 11/15/2020 Policy No: 100000770 Endorsement No: 000 Insured: Boutique Air, Inc. And Targaryen, LLC Insurance Company: QBE INSURANCE CORPORATION QBAV-2004 (05-11) Page 1 of 1 We do not make safety inspections. We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. And, we do not warrant that conditions (1) Are safe or healthful; or (2) Comply with laws, regulations, codes, or standards. c. Paragraphs a. and b. of this condition apply not only to us, but also to any rating, advisory, rate service or similar organization which makes insurance inspections, surveys, reports or recommendations. d. Paragraph b. of this condition does not apply to any inspections, surveys, reports, or recommendations we may make relative to certification under state or municipal statutes, ordinances, or regulations of boilers, pressure vessels, or elevators. 7. Legal Action Against Us No person or organization has a right under this policy: a. To join us as a party or otherwise bring us into a suit asking for damages from an insured; or b. To sue us on this Policy unless there has been full compliance with all policy terms. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial; but we will not be liable for damages that are not payable under the terms of this Policy or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured, and the claimant or the claimant's legal representative. Service of process may be made upon the the Company. However, we do not waive our rights to commence an action in any court of competent jurisdiction or to seek a transfer to another court as permitted by law. 8. Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A., B., or D. of this Policy, our obligations are limited as follows: a. Primary Insurance This insura ce is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless apylqf the other insurance is also primary. Then, we will share with all that other insurance by the hYethod despribed in c. below. b. Excess Insurance This insurance is excess over: (1) Any of the other insurance, whether primary, excess, contingent or on any other basis: (a) That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for your work; (b) That is Fire insurance for premises rented to you or temporarily occupied by you with permission of the owner; (c) That is insurance purchased by you to cover our liability as a tenant for property damage to premises rented to you or temporarily occupied by you with permission of the owner; or (d) If the loss arises out of the maintenance or use of aircraft, autos, or watercraft to the extent not subject to Exclusion g. of Section I — Coverage A. Bodily Injury And Property Damage Liability. (2) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured by attachment of an endorsement. When this insurance is excess, we will have no duty under Coverages A., B., or D. to defend the insured against any suit if any other insurer has a duty to defend the insured against that suit. If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self -insured amounts under all that other insurance. Includes copyrighted material of Insurance Services Office, Inc. with its permission. OBAV-GL1000 (10-12) Page 14 of 23 Boutique Air, Inc. BA-6N400463-20-91-G COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following is added to Paragraph c. in A.1., Who Is An Insured, of SECTION II — COVERED AUTOS LIABILITY COVERAGE in the BUSINESS AUTO COVERAGE FORM and Paragraph e. in A.1., Who Is An Insured, of SECTION II — COVERED AUTOS LIABILITY COVERAGE in the MOTOR CARRIER COVERAGE FORM, whichever Coverage Form is part of your policy: This includes any person or organization who you are required under a written contract or agreement between you and that person or organization, that is signed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to name as an additional insured for Covered Autos Liability Coverage, but only for damages to which this insurance applies and only to the extent of that person's or organization's liability for the conduct of another "insured". CA T4 37 02 16 © 2016 The Travelers Indemnity Company. All rights reserved . Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Boutique Air, Inc. BA-6N400463-20-91-G "CWMEFZCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following replaces Paragraph A.5., Transfer of required of you by a written contract executed Rights Of Recovery Against Others To Us, of the prior to any "accident' or "loss", provided that the CONDITIONS Section: "accident' or "loss" arises out of the operations 5. Transfer Of Rights Of Recovery Against Oth- contemplated by such contract. The waiver ap- ers To Us plies only to the person or organization desig- We waive any right of recovery we may have nated in such contract. against any person or organization to the extent CA T3 40 02 15 © 2015 The Travelers Indemnity Company. All rights reserved. Page 1 Of 1 Includes copyrighted material of Insurance Services Office, Inc. with its permission. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT WC000313 (Ed. 04-84) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule Any person or organization to whom you become obligated to waive your rights of recovery against, under any contract or agreement you enter into prior to the occurrence of loss. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below Is required only when this endorsement is Issued subsequent to preparation of the policy.) Endorsement Effective: Insured: Insurance Company: Policy No.: Premium: Countersigned by: Endorsement No.: WC 00 03 13 (Ed. 04-84) Page 1 of 1 LEASE PALM SPRINGS INTERNATIONAL AIRPORT and BOUTIQUE AIR, INC. THIS LEASE ("Lease") is made and entered into this 1st day of December, 2020 by and between the CITY OF PALM SPRINGS, a municipal corporation (referred to variously as "Landlord" or "City"), and BOUTIQUE AIR, INC., ("Tenant") who agree as follows: RECITALS: A. Lessor desires to lease hangar facilities at Palm Springs International Airport ("Airport") to operate a Commercial Aeronautical Activity, which includes aircraft maintenance and related service for commercial aircraft. B. City believes that the airlines using the City's airport would benefit from these airline related services. NOW THEREFORE, City and Lessee mutually agree as follows: 1.0 LEASE SUMMARY. Certain fundamental lease provisions are presented in this Section and represent the agreement of the parties hereto, subject to further definition and elaboration in the respective referenced Sections and elsewhere in this Lease. In the event of any conflict between any fundamental lease provision and the balance of this Lease, the latter shall control. References to specific Sections are for convenience only and designate some of the Sections where references to the particular fundamental lease provisions may appear. 1.1 Premises. The "Premises" shall refer to that certain real property located in the City of Palm Springs, County of Riverside, State of California, located at 3001 E. Alejo Road and shown on Exhibit "A". 1.2 Approximate Floor Area of Premises. 10,000 square feet of exclusive use hangar area and 10,000 square feet of preferential use apron area. 1.3 Rent. $5,000 per month (see Section 3.1). 1.4 Security Deposit. $2,500.00; 55575.38160\33514567.1 1.5 Use of Premises. Lessee shall use and occupy the Premises for the purpose of administrative services/office/employee workspace related to the Commercial Aeronautical Activities and Aircraft Maintenance only as further described in Section 4.0. 1.6 Address for Notices Tenant: Boutique Air 5 Third Street, Suite 925 San Francisco, CA 94103 Landlord: City of Palm Springs Attn: City Manager 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Cc: Palm Springs International Airport 3400 E. Tahquitz Canyon Way, Suite Palm Springs, CA 92262 2.0 TERM. 2.1 Lease Term. The term of this lease shall commence on December 1, 2020 and shall terminate on December 31, 2023. Subject, however, to earlier termination by Lessee or the City with thirty (30) days advance written notice, or as otherwise provided in this Lease. 2.2 Termination by Landlord. Landlord shall have the right to terminate this Lease effective at any time after the first anniversary of the Commencement Date, for its convenience and without cause, upon giving Tenant thirty (30) days prior written notice. Tenant hereby waives any right to receive any other compensation from Landlord, including, but not limited to, the value of Tenant's leasehold interest, loss of goodwill and relocation benefits, inverse condemnation or the taking of property and Landlord shall have no obligation to pay Tenant therefore. Landlord shall not be obligated to pay Tenant any portion, including any unamortized portion, of any costs of improvements except as the Parties may agree in writing by future amendment to this Lease. Landlord shall have the right to terminate this Lease upon thirty (30) days advance written notice to Tenant for non- performance of this agreement including delinquent rental payments, failure to provide annual reports as outlined in Exhibit "E", or any other breach of agreement terms (see 55575.38160\33514567.1 Section 3.8). 2.3 Holding Over. Any holding over after the expiration of the term of this Lease, with the consent of Landlord, express or implied, shall be construed to be a tenancy from month -to -month, cancelable upon thirty (30) days written notice, and continued at the rent in effect at the expiration of the term and upon terms and conditions as existed during the last year of the term. 3.0 RENT. 3.1 Rent. Tenant shall pay to Landlord, during the term of this Lease from and after the Commencement Date as monthly rental ("Monthly Rental") for the Premises the sum specified in Section 1.3, which sum shall be paid in advance on the first day of each calendar month. In the event the Commencement Date does not occur on the first day of a calendar month, the Tenant shall pay the rental for the fractional month on the Commencement Date on a per diem basis (calculated on a thirty -day month). All rental to be paid by Tenant to Landlord shall be in lawful money of the United States of America and shall be paid without deduction or offset, prior notice or demand at the address designated in Section 1.7. 3.2 Consumer Price Index Adjustment. The Monthly Rental shall be adjusted in proportion to changes in the Consumer Price Index on the first day of January of every year except for 2021. Such adjustment shall be made by multiplying the original Monthly Rental by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to Commencement Date. For example, if the adjustment is to occur effective January 1, 2022, the index to be used for the denominator is the index for the month of March preceding the Commencement Date. However, in no event shall the rent be reduced below the Monthly Rental in effect immediately preceding such adjustment. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index for All Urban Consumers (CPI-U): Riverside -San Bernardino -Ontario, published by the United States Department of Labor, Bureau of Labor Statistics (December 2017=100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. 3.3 Real Property Taxes. Tenant shall pay either directly to the taxing authority or to Landlord, annual real estate taxes and assessments levied upon the Premises (including any possessory interest taxes levied under Revenue and Tax Code 107.6), as well as taxes of every kind and nature levied and assessed in lieu of, in substitution for, or in addition to, existing real property taxes. 55575.38160\33 514567.1 3.4 Utilities. (a) Water. Lessee shall pay for water utility services. (b) Solid Waste. Lessee shall pay for solid waste services. (c) All other Utilities. Tenant shall pay for gas, heat, electricity, power, sewer, telephone service, and all other utility services used in, upon, or about the Premises by Tenant or any of its subtenants, licensees, or concessionaires during the term of this Lease. (d) Interruption of Utilities. No interruption or failure of utilities shall result in the termination of this Lease or the abatement of rent. (e) Recovery for Failure to Pay. All payments must be made within the time they are due. If Landlord is required to, or pays for, any utility service incurred by Tenant, Landlord may recover its costs including but not limited to staff time and attorney's fees that result out of Tenant's failure to pay utilities, fees, or charges. 3.5 Late Payment. Tenant hereby acknowledges that late payment by Tenant to Landlord of rental or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Tenant not paid within five (5) days of its due date shall be subject to a five percent (5%) late charge. Landlord and Tenant agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to Landlord for its loss suffered by such late payment by Tenant. Sixty (60) days before the anniversary date each year the City shall notify the Tenant of any outstanding delinquency, which must be cured prior to the anniversary date or the City may exercise its right of termination under Section 2.2 and terminate the lease. If a due date falls on a date the City offices are closed for holidays or otherwise, payment may be accepted as on time on the City's next open business day. 4.0 USE OF THE PREMISES 4.1 Permitted Use. The Landlord hereby leases to Tenant the exclusive use of the building Premises, with improvements as defined herein, for the purpose of conducting thereon only the use specified in Section 1.5 of this Lease. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants, injure or annoy them, or disturb the quiet enjoyment of other tenants or occupants. 4.2 Compliance with Laws. (a) Tenant shall comply with all laws, ordinances, orders, regulations, rules, resolutions and other governmental requirements relating to the use, condition or 4 5 5575.3 8160\33 514567.1 occupancy of the Premises which may now or hereafter be in force, including, without limitation, the Americans with Disabilities Act of 1990, and applicable Environmental Laws as defined herein (collectively, the "Laws"). The cost of compliance with any of the Laws (except any capital expenditures, which are the Landlord's responsibility, as provided in Section 5.3 ) shall be borne by Tenant. Tenant shall not use or occupy the Premises in violation of any Law or of the certificate of occupancy issued for the Building of which the Premises are a part, and shall, upon five (5) days written notice from Landlord, discontinue any use of the Premises which is declared by any governmental authority having jurisdiction to be a violation of Law or of the certificate of occupancy. Tenant shall not use or occupy the Premises in any manner which is: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises; or (ii) in a manner which creates a basis for liability of Landlord to any governmental agency or third party under any applicable statute or common law theory including, but not limited to, Environmental Laws. Tenant shall comply with any direction of any governmental authority having jurisdiction which shall, by reason of the nature of Tenant's use or occupancy of the Premises, impose any duty upon Tenant or Landlord with respect to the Premises or with respect to the use or occupation thereof. Tenant shall not do or permit to be done anything which will invalidate or increase the cost of any fire, extended coverage or any other insurance policy covering the Building and/or property located therein and shall comply with all rules, orders, regulations and requirements. Tenant shall promptly upon demand reimburse Landlord as additional rent for any additional premium charged for such policy by reason of Tenant's failure to comply with the provisions of this Paragraph. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Building, or injure or annoy them, or use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or suffer to be committed any waste in or upon the Premises and shall keep the Premises in a reasonably good, neat, and clean condition and appearance. (b) Tenant shall comply with all federal, state and local laws, ordinances, rules and regulations relating to environmental protection or the use, analysis, generation, treatment, handling, storage, disposal, release, threatened release or transportation of any Hazardous Materials (as hereinafter defined) including, but not limited to Environmental Laws. Tenant shall not cause or permit any Hazardous Materials to be brought upon, kept, used, generated, treated, handled, released, stored or disposed in, on, under or about the Building or Premises by Tenant, its agents, employees, contractors, licensees or invitees, without the prior written consent of Landlord. The term "Hazardous Materials" as used in this Lease includes any hazardous, toxic, contaminated or polluting substance, material or waste which is regulated by any local governmental authority or special district, the State of California or the United States Government, including any material, contaminant, pollutant, or substance which is: (i) designated as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste" or "restricted hazardous waste"; (ii) flammables or explosives; (iii) petroleum or petroleum products; (iv) asbestos; (v) polychlorinated biphenyls ("PCB"), or PCB -containing materials; (vi) radioactive materials; or (vii) materials or chemicals stated to be known to cause cancer or reproductive 55575.3 8160\33514567.1 toxicity. In addition, the term "Hazardous Materials" shall also include those materials and substances which are deemed to be hazardous under applicable case law and/or common law theories including, without limitation, theories of nuisance and tort liability. Notwithstanding the foregoing, Tenant may, without Landlord's prior consent, use any ordinary and customary materials reasonably required to be used by Tenant in the normal course of Tenant's office operation on the Premises, so long as such use is in compliance with this Lease, all applicable Laws, and does not expose the Building, Property, Premises or any neighboring properties to any material risk of contamination or damage or expose Landlord to any liability therefor. Landlord makes no representation or warranty as to the presence of Hazardous Materials in, on, under, or emanating from or to the Building or Premises. Landlord has received no written notice of any Building or Premises violation of any applicable Laws regarding Hazardous Materials. "Environmental Laws" shall mean all federal, state and local laws, statutes, ordinances, codes, rules, regulations, standards, orders and requirements pertaining to Hazardous Materials, including the handling and exposure to Hazardous Materials, and/or environmental conditions in, on, under or about the Premises, the Property, or the Building, including soil and groundwater conditions, whether now in effect or which may hereafter come into effect, including but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") (42 U.S.C. § 9601 et seq.); the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. § 6901 et seq.); the California Hazardous Waste Control Act ("HWCA") (Cal. Health & Safety Code § 25100 et seq.); and the California Hazardous Substance Account Act ("HSAA") (Cal. Health & Safety Code § 25300 et seq.). (c) Pursuant to Section 5.3, Landlord shall be responsible for any structural alterations required to maintain compliance with any Laws, and Tenant shall be responsible for informing Landlord of the need for such alterations. (d) Inspection by Certified Access Specialist. Landlord discloses that the Premises have not undergone inspection by a Certified Access Specialist as referenced in California Civil Code Section 1938 subsection (e) of which provides: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction -related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction -related accessibility standards within the premises." Pursuant to the foregoing Section 1938(e), Tenant acknowledges and agrees that, if Tenant wishes to have the Premises inspected by a CASp: (i) Tenant must notify Landlord on or before the date when Tenant executes this Lease pursuant to the election below; (ii) the inspection will be at Tenant's sole cost and expense; (iii) the inspection must be scheduled through Landlord and in coordination with the Building's property manager; (iv) any repairs or modifications necessary to correct any violation of construction -related accessibility 6 55575.38160\33514567.1 standards that is noted in the CASp report shall be Tenant's responsibility; and (v) Tenant must provide a copy of the CASp report to Landlord on completion. By initialing below, Tenant represents that: Tenant hereby waives its right to have a CASp inspection of the Premises Initials: 4.3 Signs. Tenant shall not place or permit to be placed any sign that is not in compliance with the sign ordinance of the Landlord upon the exterior or in the windows of the Premises. Any sign not constructed in accordance therewith shall be immediately removed by Tenant and, if said sign is not removed by Tenant within ten (10) days of written notice from Landlord to Tenant, then Landlord may remove and destroy said sign without Tenant's approval, at Tenant's cost, and without any liability to Tenant. 4.4 Parking and Common Areas. During the term of this Lease and any extension thereof, Landlord gives to Tenant for the use and benefit of Tenant, its agents, employees, customers, licensees and subtenants a non-exclusive license in common with Landlord and other present and future owners and tenants of the Property and their agents, employees, customers, licensees and subtenants, and others authorized by Landlord to use the automobile parking areas, roadways, walkways, landscaped areas, service areas, of the Property for ingress, egress and automobile parking, provided that the condemnation or other taking by any public authority, or sale in lieu of condemnation, of any or all of such parking and common areas shall not constitute a violation of this covenant. Nothing herein contained shall be deemed to prevent Landlord from using or authorizing others to use said parking and common areas. 4.5 Rules and Regulations. Tenant shall faithfully observe and comply with the rules and regulations that Landlord shall from time to time promulgate and/or modify. Any amendment or modification of the Rules and Regulations shall be binding upon the Tenant upon delivery of a copy of such amendment or modification to Tenant. Landlord shall not be responsible to Tenant for the nonperformance of any said rules and regulations by any other tenants or occupants. The Rules and Regulations shall apply and be enforced as to all tenants in the Premises on a uniform basis. 5.0 ALTERATIONS, MAINTENANCE AND REPAIRS. 5.1 Alterations and Fixtures. Tenant shall not make, or suffer to be made, any alterations to the Premises, or any part thereof, outside the terms of this lease, without the prior written consent of Landlord. Any alterations to the Premises, except movable furniture and trade fixtures, shall become at once a part of the realty and shall at the expiration or earlier termination of this Lease belong to Landlord. 5.2 Maintenance. Tenant shall be responsible for the minor cosmetic maintenance of the Premises, such as vacuuming, cleaning, mopping, painting, light bulb changes, regular deep cleaning of the Premises, and small repairs. 55575.3 8160\33 514567.1 5.3 Repair. Landlord shall be responsible for repairs to the Premises are limited to structural repairs and the roof and any exterior improvements. Tenant hereby waives all rights to make repairs at the expense of Landlord, and Tenant hereby waives all rights provided for by the Civil Code of the State of California to make said repairs. By entering into the Premises, Tenant shall be deemed to have accepted the Premises as being in tenantable order, condition and repair, and Tenant agrees on the last day of said term or sooner termination of this Lease to surrender the Premises with appurtenances, in the same condition as when received and in a tenantable condition, reasonable use and wear thereof and damage by fire, acts of God or by the elements excepted. Upon Tenant's possession of the Premises, Tenant shall be deemed to have accepted the Premises as being in tenantable condition and repair. Tenant agrees that it will not, nor will it authorize any person to, go onto the roof of the building of which the Premises are a part without the prior written consent of Landlord. Landlord shall respond, within a reasonable time period, to Tenant's non -emergency requests for repairs. Landlord shall respond 24 hours a day, 7 days a week for emergency repairs to the Premises. For purposes of this section, "emergency" shall mean a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, or property. 5.4 Free from Liens. Tenant shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 6.0 INSURANCE AND INDEMNIFICATION. 6.1 Insurance Provided by Landlord. Landlord shall maintain fire and extended coverage insurance throughout the term of this Lease in an amount equal to at least ninety percent (90%) of the replacement value of Landlord's buildings on the Premises, together with such other insurance, coverages and endorsements as may be required by Landlord's lender, or as Landlord may determine in its sole discretion. Tenant hereby waives any right of recovery from Landlord, its officers and employees, and Landlord hereby waives any right of loss or damage (including consequential loss) resulting from any of the perils insured against as a result of said insurance. Tenant agrees to pay to Landlord its pro rata share of the cost of said insurance to be determined by the relationship that the gross floor area of the Premises bears to the total gross leasable floor area of the building or buildings for which such policy relates. 6.2 Insurance Provided by Tenant. (a) Tenant to Provide Personal Property Insurance. Tenant, at its expense, shall maintain fire and extended coverage insurance written on a per occurrence basis on its trade fixtures, equipment, personal property and inventory within the Premises from loss or damage to the extent of their full replacement value. a 55575.38160\33514567.1 (b) Tenant to Provide Liability Insurance. During the entire term of this Lease, the Tenant shall, at the Tenants sole cost and expense, but for the mutual benefit of Landlord and Tenant, maintain comprehensive general liability insurance insuring against claims for bodily injury, death, or property damage occurring in, upon or about the Premises in a combined single limit of FIVE MILLION DOLLARS ($5,000,000.00) per occurrence and TEN MILLION DOLLARS ($10,000,000.00) in the aggregate. However, if Landlord so elects Landlord may provide such insurance and, in such event, Tenant agrees to pay its pro rata share of the cost of said insurance on the same basis as provided in Section 6.1 above. (c) Tenant to Provide Worker's Compensation Insurance. If applicable, Tenant shall, at the Tenants sole cost and expense, maintain a policy of worker's compensation insurance in an amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Tenant and the Landlord against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Tenant in the course of conducting Tenant's business in the Premises. (d) General Provisions Applicable to Tenant's Insurance. All of the policies of insurance required to be procured by Tenant pursuant to this Section 6.2 shall be primary insurance and shall name the Landlord, its officers, employees and agents as additional insureds. The insurers shall waive all rights of contribution they may have against the Landlord, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to the Landlord. Prior to the Commencement Date or such earlier date as Tenant takes possession of the Premises for any purpose; and at least thirty (30) days prior to the expiration of any insurance policy, Tenant shall provide Landlord with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages written by insurance companies acceptable to Landlord, licensed to do business in the state where the Premises are located and rated A: VII or better by Bests Insurance Guide. In the event the Risk Manager of Landlord ("Risk Manager") determines that (i) the Tenant's activities in the Premises creates an increased or decreased risk of loss to the Landlord, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverages be obtained, Tenant agrees that the minimum limits of any insurance policy required to be obtained by Tenant may be changed accordingly upon receipt of written notice from the Risk Manager, provided that Tenant shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of Landlord within ten (10) days of receipt of notice from the Risk Manager. Landlord and Tenant hereby waive any rights each may have against the other on account of any loss or damage occasioned by property damage to the Premises, its contents, or Tenants trade fixtures, equipment personal property or inventory arising from any risk generally 0 55575.38160\33514567.1 covered by insurance against the perils of fire, extended coverage, vandalism, malicious mischief, theft, sprinkler damage, and earthquake sprinkler leakage. T, on behalf of their respective insurance companies insuring such property of either Landlord or Tenant against such loss, waives any right of subrogation that it may have against the other. The foregoing waivers of subrogation shall be operative only so long as available in California and provided further that no policy is invalidated thereby. A waiver of subrogation shall be endorsed upon Tenant's liability policy. 6.3 Indemnification of Landlord. Tenant, as a material part of the consideration to be rendered to Landlord under this Lease, hereby waives all claims against Landlord for damage to equipment or other personal property, trade fixtures, leasehold improvements, goods, wares, inventory and merchandise, in, upon or about the Premises and for injuries to persons in or about the Premises, from any cause arising at any time. Tenant agrees to indemnify the Landlord, its elected officials, officers, agents, public officials, volunteers, and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the performance of the work, operations or activities of Tenant, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Premises or the common area by Tenant or its employees and customers, or arising from the failure of Tenant to keep the Premises in good condition, as herein provided, or arising from the negligent acts or omissions of Tenant hereunder, or arising from Tenant's negligent performance of or failure to perform any term, provision covenant or condition of this Lease, whether or not there is concurrent passive or active negligence on the part of the Landlord, its officers, agents, public officials, volunteers, or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the Landlord, its officers, agents, public officials, volunteers, or employees, who are directly responsible to the Landlord, and in connection therewith: (a) Tenant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Tenant will promptly pay any judgment rendered against the Landlord, its officers, agents, public officials, volunteers, or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Tenant hereunder, and Tenant agrees to save and hold the Landlord, its officers, agents, public officials, volunteers, and employees harmless therefrom; (c) In the event the Landlord, its elected officials, officers, agents. public officials, volunteers, or employees is made a party to any action or proceeding filed or prosecuted against Tenant for such damages or 10 55575.38160\33514567.1 other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Tenant hereunder, Tenant agrees to pay to the Landlord, its officers, agents, public officials, volunteers, or employees, any and all costs and expenses incurred by the Landlord, its officers, agents. public officials, volunteers, or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees 7.0 ABANDONMENT AND SURRENDER. 7.1 Abandonment. Tenant shall not vacate or abandon the Premises at any time during the term of this Lease, except upon providing Landlord eighteen (18) months' prior written notice. If Tenant shall abandon, vacate or surrender the Premises without said notice or be dispossessed by process of law, or otherwise, any personal property belonging to Tenant and left on the Premises shall be deemed to be abandoned, at the option of Landlord, except such property as may be mortgaged to Landlord. 7.2 Surrender of Lease. The voluntary or other surrender of this Lease by Tenant or a mutual cancellation , shall not work a merger, and shall, at the option of Landlord, terminate all or any existing subleases or sub -tenancies, or may, at the option of Landlord, operate as an assignment to it of any or all of such subleases or sub -tenancies. 8.0 DAMAGE AND DESTRUCTION OF PREMISES. In the event of (a) partial or total destruction of the Premises during the term of this Lease, which requires repairs to the Premises, or (b) the Premises being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than Tenant's act, use or occupation, which declaration requires repairs to the Premises, Landlord shall, at its option, make such repairs. Any partial or total destruction of the Premises (including any destruction necessary in order to make repairs required by any declaration made by any public authority) may, at Tenant's election, annul or void this Lease. 9.0 ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or sublet the Premises or any interest therein without the prior written consent of Landlord. Landlord may withhold its consent to an assignment or sublease to a proposed assignee or sub -lessee, and Tenant agrees that Landlord shall not be unreasonable for doing so, unless all the following criteria are met: (a) The proposed assignee's or sub -lessee's general financial condition, including liquidity and net worth, verified by audited financial statements prepared by a Certified Public Accountant in conformity with Generally Accepted Accounting Principles is equal to or greater than that of Tenant; (b) the proposed assignee or sub -lessee has a demonstrated merchandising capability equal to or greater than that of Tenant as to the use for which the Premises are leased; (c) the proposed assignee or sub -lessee is morally and financially responsible; (d) the failure of tenant's use of the Premises to fit the business plan of Landlord to promote tourism to the City of Palm Springs; and (e) the proposed assignee or subtenant is exempt from federal income taxation pursuant to Internal Revenue Code Sections 501(c)(1) and/or 501(c)(3) and the proposed assignee's or 11 55575.3 8160\33514567.1 subtenant's proposed use of the Premises is a tax exempt function. Any such assignment shall be subject to all of the terms and conditions of this Lease and the proposed assignee shall assume the obligations of Tenant under this Lease in writing in form satisfactory to Landlord. Landlord shall be under no obligation to consider a request for Landlord's consent to an assignment until Tenant shall have submitted in writing to Landlord a request for Landlord's consent to such assignment together with audited financial statements of Tenant and the proposed assignee, a history of the proposed assignee's business experience and such other information as required by Landlord to verify that the criteria for assignment, as set forth herein are met. If Landlord approves such assignment, Tenant shall pay to Landlord one-half (1/2) of any consideration received by Tenant for such assignment. In addition, if Landlord determines that the Monthly Rent payable to Landlord under this Lease is less than the fair market rental value, as determined by Landlord, Landlord shall have the right to condition its approval to an assignment or subletting on the increase of Monthly Rent to the fair market rental value. 10.0 CURE AND REMEDIES. 10.1 Default by Tenant. In addition to the defaults described in Section 9.0 hereinabove, the occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant: (a) the failure to pay any rent or other payment required hereunder to or on behalf of Landlord more than three (3) days after written notice from Landlord to Tenant that Tenant has failed to pay rent when due; (b) the vacation or abandonment of the Premises by Tenant. Landlord may, at its discretion, allow Tenant to cure any defaults within sixty (60) days or any other agreed upon terms (in writing) without waiving any future right to terminate the lease for any other breach of the lease. Notwithstanding any of the foregoing, the breach of this Lease by Tenant, or an abandonment of the Premises by Tenant, shall not constitute a termination of this Lease, or of Tenant's right of possession hereunder, unless and until Landlord elects to do so, and until such time Landlord shall have the right to enforce all of its rights and remedies under this Lease, including the right to recover rent, and all other payments to be made by Tenant hereunder, as they become due. Failure of Landlord to terminate this Lease shall not prevent Landlord from later terminating this Lease or constitute a waiver of Landlord's right to do so. 10.2 No Waiver. Acceptance of rental hereunder shall not be deemed a waiver of any default or a waiver of any of Landlord's remedies. 10.3 Landlord's Right to Terminate. In the event of any such default by Tenant, in addition to any other remedies available to Landlord at law or in equity, Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder. In the event that Landlord shall elect to so terminate this Lease then Landlord may recover from Tenant: 12 55575.38160\33514567.1 (a) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (b) the worth at the time of award of the amount by which the unpaid rent which would have been reasonably earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus (d) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom. As used in Subparagraphs 10.3 (a) and (b) above, the "worth at the time of award" is computed by allowing interest at the maximum rate permitted by law per annum. As used in Subparagraph 10.3(c) above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1 %). 10.4 Landlord's Re -Entry In the event of any such default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re- enter the Premises and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. No re-entry or taking possession of the Premises by Landlord pursuant to this Subparagraph 10.4 shall be construed as an election to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination t be decreed by a court of competent jurisdiction. 10.5 No Termination of Lease. Landlord shall also have the remedy described in California Civil Code Section 1951.4 (i.e., the right to continue the Lease in effect and recover rent as it becomes due). In such event, Landlord may continue this Lease in full force and effect, and this Lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the Premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including, without limitation, brokers' commissions, expenses of remodeling the Premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Tenant shall 13 55575.3 8160\33514567.1 pay to Landlord the rent due under this Lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this Subparagraph 10.5 shall terminate this Lease unless Landlord notifies Tenant that Landlord elects to terminate this Lease. If Landlord elects to relet the Premises as provided in this Subparagraph 10.4, rent that Landlord receives from reletting shall be applied to the payment of: (a) First, any indebtedness from Tenant to Landlord other than rent due from Tenant; (b) Second, all costs, including for maintenance, incurred by Landlord in reletting; (c) Third, rent due and unpaid under this Lease. After deducting the payments referred to in this Paragraph, any sum remaining from the rent Landlord receives from reletting shall be held by Landlord and applied in payment of future rent as rent becomes due under this Lease. In no event shall Tenant be entitled to any excess rent received by Landlord. If, on the date rent is due under this Lease, the rent received from the reletting is less than the rent due on that date, Tenant shall pay to Landlord, in addition to the remaining rent due, all costs, including for maintenance, Landlord incurred in reletting that remain after applying the rent received from the reletting as provided in this Subparagraph 25(d). 10.6 Landlord's Rights, Options and Remedies. All rights, options and remedies of Landlord contained in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law or in equity, whether or not stated in this Lease. No waiver of any default of Tenant hereunder shall be implied from any acceptance by Landlord of any rent or other payments due hereunder or any omission by Landlord to take any action on account of such default if such default persists or is repeated. Any waiver must be in writing and such express waiver shall not affect defaults other than as specified in the waiver. The consent or approval of Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent or approval to or of any subsequent similar acts by Tenant. 10.7 Meaninq of "Rent" As used in this Lease, except as expressly stated herein, the term "rent" shall refer to Monthly Rental and any other sum required to be paid to Landlord under this Lease. 14 55575.38160\33514567.1 11.0 MISCELLANEOUS. 11.1 Reservation of Right to Modify Property. Landlord hereby reserves the right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce, reconfigure, enclose and/or otherwise alter all or any portion of the Premises (collectively "Modifications"), in such manner and at such time or times, throughout the term of this Lease, as Landlord may, in its sole and absolute discretion, deem to be in the best interests of the Property. In connection with any and all such Modifications, Landlord may enter the Premises to the extent reasonably required by Landlord to pursue and complete such Modifications. In addition, Landlord may temporarily close portions of the parking and common areas and cause temporary obstructions in connection with any Modifications. Landlord will use reasonable efforts to avoid impeding on Tenant's regular business and patrons. Notice for such modifications will be provided to Tenant in writing at least thirty (30) days in advance. Tenant agrees that under no circumstances shall the Modifications as to any portion of the Property or the construction activity that takes place in the course of making the Modifications, or any aspect thereof, including Landlord's entry into the Premises, constitute an eviction or partial eviction of Tenant or a breach of Tenant's right to quiet enjoyment or of any other provision of this Lease. 11.2 Entry and Inspection. Tenant shall permit Landlord and his agents to enter into and upon the Premises at all reasonable times for the purpose of inspecting the same for the purpose of maintaining or repairing the Premises as required by the terms of this Lease or for the purpose of posting notices of non -liability for alterations, additions or repairs, or for the purpose of placing upon the property in which the Premises are located any usual or ordinary "For Sale" signs or any signs for public safety as determined by Landlord. Landlord shall be permitted to do any of the above without any rebate of rent. 11.3 Estoppel Certificate. If, as a result of a proposed sale, assignment, or hypothecation of the Premises or the land thereunder by Landlord, or at any other time, an estoppel certificate shall be requested of Tenant, Tenant agrees, within ten (10) days thereafter, to deliver such estoppel certificate in the form attached hereto as Exhibit "F" addressed to any existing or proposed mortgagee or proposed purchaser, and to the Landlord. Tenant shall be liable for any loss or liability resulting from any incorrect information certified, and such mortgagee and purchaser shall have the right to rely on such estoppel certificate and financial statement. 11.4 Jurisdiction, Venue and Mediation. The parties hereto agree that the State of California is the proper jurisdiction for litigation of any matters relating to this Lease, and service mailed to the address of tenants set forth herein shall be adequate service for such litigation. The parties further agree that Riverside County, California is the proper place for venue as to any such litigation and Tenant agrees to submit to the personal jurisdiction of such court in the event of such litigation. Prior to any claim or litigation for breach of this agreement, Landlord and Tenant agree to non -binding mediation and agree to split the cost for such mediation. 15 55575.38160\33514567.1 11.5 Force Maieure. If either party hereto shall be delayed or prevented from the performance of any act ,including, but not limited to reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, usually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargos, wars, and/or acts of any government agency, restrictive governmental laws or regulations or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay as determined by the Landlord, provided such party provides the other party written notice of such event within ten (10) days of the commencement of the prompt payment of any rental or other charge required of Tenant hereunder except as may be expressly provided elsewhere in this Lease. Upon receipt of written notice of delay from the Tenant, Landlord shall ascertain the facts and the extent of delay, and extend the time for performing the acts required for the period of the enforced delay when and if in the judgment of the Landlord such delay is justified. The Landlord's determination shall be final and conclusive upon the Parties to this Lease. 11.6 Partial Invalidity. If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated . 11.7 Successors in Interest. The covenants herein contained shall, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. 11.8 No Oral Agreements. This (i) Lease covers in full each and every agreement of every kind or nature whatsoever between the parties hereto concerning this Lease, (ii) supersedes any and all previous obligations, agreements and understandings, if any, between the parties, oral or written, and (iii) merges all preliminary negotiations and agreements of whatsoever kind or nature herein. Tenant acknowledges that no representations or warranties of any kind or nature not specifically set forth herein have been made by Landlord or its agents or representatives. 11.9 Authority. In the event that Tenant is a corporation or a partnership, each individual executing this Lease on behalf of said corporation or said partnership, as the case may be, represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said corporation or partnership, in accordance with a duly adopted resolution of the Board of Directors, if a corporation, or in accordance with the Partnership Agreement if a partnership, and that this Lease is binding upon said corporation or partnership in accordance with its terms. Tenant represents and warrants to Landlord that the entering into this Lease does not violate any provisions of any other agreement to which Tenant is bound. 16 55575.38160\33514567.1 11.10 Relationship of Parties. The relationship of the parties hereto is that of Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any way or for any purpose become a partner of Tenant in the conduct of Tenant's business or otherwise, or a joint venture with Tenant. 11.11 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 11.12 Notices. Wherever in this Lease it shall be required or permitted that notice and demand be given or served by either party to this Lease to or on the other, such notice or demand shall be given or served in writing and shall not be deemed to have been duly given or served unless in writing, and personally served or forwarded by certified mail, postage prepaid, addressed, if to Landlord, as specified in Section 1.7. Either party may change the address set forth herein by written notice by certified mail to the other. Any notice or demand given by certified mail shall be effective one (1) day subsequent to mailing. 11.13 Waiver. No delay or omission in the exercise of any right or remedy by a non -defaulting party shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Lease.- 11.14 Exhibits and Addenda. The Exhibits and any other attachments to this Lease are made a part as if fully set forth herein. 11.15 Conflict of Interest. Tenant acknowledges that no officer or employee of the Landlord has or shall have any direct or indirect financial interest in this Lease nor 17 55575.38160\33514567.1 shall Tenant enter into any agreement of any kind with any such officer or employee during the term of this Lease and for one year thereafter. Tenant warrants that Tenant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Lease. 11.16 California Labor Code Requirements. Tenant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If Tenant performs any "maintenance" with regard to the Premises, and if the total compensation is more than $15,000 or more, Tenant agrees to fully comply with such Prevailing Wage Laws, if applicable. Tenant shall defend, indemnify and hold the Landlord, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Tenant shall therefore comply with such Labor Code sections to fullest extent required by law. It shall be mandatory upon the Tenant and all of Tenant's contractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors. 11.17 Attorneys' Fees. In the event that any action or proceeding is commenced to regarding this Lease, the prevailing party in such action or proceeding, in addition to all other relief to which it may be entitled, shall be entitled to recover from the other party the prevailing party's costs of suit and reasonable attorneys' fees. The prevailing party shall be as determined by the court in accordance with Code of Civil Procedure Section 1032. The attorney's costs and expert fees recoverable pursuant to this Section include, without limitation, attorney's costs and expert fees incurred on appeal and those incurred in enforcing any judgment rendered. Attorney's costs and fees may be recovered as an element of costs in the underlying action or proceeding or in a separate recovery action. [SIGNATURES ON NEXT PAGE] 55575.3 8160\33514567.1 18 IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. "CITY" City of Palm Springs David H. Ready, PhD r City Manager APPROVED AS TO FORM: ATTEST By:(` -)By J frey . Ball' er, City Attorney AIRLINE: Check one: Zcorporation Partnership Corporations require two notarized signatures: One from each of thefollowing: A. Chairman of Board, President, or any Vice President: AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. C—Q By: By:� Signature (notarized) Signature Name: Name: '•S� Title: V�" Mx O PS Title: Palm Canyon Theatre Lease 538 North Palm Canyon Drive A-1 55575.38160\33514567.1 CALIFORNIA ALL4KMUMM CIV& CODE § 7789 - R: R` .0 d d d ! -hw'\ /n �• ••• -a ¢c � d d " d f ... ....b/1DM�ro a��aRt �n tRa A n=y pubhc a ad= dtim omqd= On cerfficate readies a6l fie of 8re Mvi&W who mg and to doown m to which dw cWAcM w r ached, and rot #W bU# hdnees. ecweWC a wih ty d dW dw2 sty ofs. wwn lle"-i Iva n y county CLttm r i z y on D=f! n Cr1B'Zorc wbwn ,�. G,��521YJ f lerinn 4/o1url Dsfe lion Inert Akme and TW9 c6 Hue Oftk personally I�r�_ rl rel Pa 141 l -As c Thom�!5 _Ta.seohl _ who prayed to rns an the hews of embefarbmy evidence to be the person(e) whoes rwrrm(si Were r rbeo;5ed to the wig kwhu rent and edvrowledoW to me Bud he✓ahelerey executed the acme in h�lfwdll+eir mutlroa®d ceps mek aid ttmt by hk hw tffm r agpte"s) on go in�ument aria pmaon(a). or the ally t� betwtf aff %#nob the per Km" eatett wwc>ted the untrtanmd_ Commonwealth of Pennsylvania -Notary Seal Lisa M. Hoffman, Notary Public Cambria County My commission expires September 11, 2022 Commission number 1169468 I corti/y ureter PE MPJ-TY OF PERJURY raider the Imes of the stair of Caff enva tfmt the foregoing parWaph re tn,e and conec.-L Pfiwe Notary SeerAbove aNFFKNW Thm6h dia s e c k leopffiornK omphdWg Ihis irYbiwretioar can deter atfm% lion of the dbotument or fuuatudWent Matlathr wod of }Fes fang to an aradended document_ Deecripbon, of IWiached Docanent Idle or Type of Docwnmtt DOM"Md 11e1W Nwnber of Pegew SWmff(s) Other Then Named Above_ Cepecity0ee) Chinned by Sgnea(s) signers Nerve_ ❑ Corporate Officer — TMaW ❑ Partner — ❑ iirutad ❑ Oenand ❑ kKhWduEd ❑ Attorney in Fad ❑Tnmtae ❑ GLmfdon or Conservator n r>�_ Sw— to w Signora Newer ❑ Corporate Officer — T ❑ Partner — ❑ united ❑ General ❑ Indvidual ❑ Attorney in Fact ❑ Tnratee ❑ Quardan or Conservator ❑ Olfev Signer to i%epaaeerdfing= 02M4 Nalmrrd Ndwy A t - wwwAubmU Nofery cg ' lAMO- a NDTARY O-800-8754RW) Item #Mt17 Palm Canyon Theatre Lease 538 North Palm Canyon Drive 55575.38160\33514567.1 Y 3.i 3 ' Nil, LL A \ i s- Boutique Hangar Lease - Alejo 55575.38160\33514567.1