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A5283 - ARENAS ASSOCIATES dba PS FUDGE & CHOCOLATES
CONTRACT AB TRACT fi. Contract Company Name: ARENAS ASSOCIATES dba Palm Springs Fudge & Chocolates Company Contact: Lutfa Mobarak, Owner Summary of Services: Amendment No. 3 to Amended and Restated tease Lease Term: Starting monthly rent effective November 18, 2023, shall be adjusted to $2,299.18, with Tenant to pay all operational utility and maintenance cost necessary to operate the Premises. Upon each anniversary date of the Commencement Date, monthly rental shall be adjusted in an amount equal to the increase in the Consumer Price Index, for the Riverside -San Bernardino -Ontario Metropolitan Statistical Area, during the preceding twelve (12) month period; or three percent (3%), whichever is greater. Funding Source: Contract Term NIA November 17, 2028 Contract Administration Lead Department: Community & Economic Development Contract Administrator: Jennifer Henning Contract Approvals Council Approval Date: December 14, 2023 - Item 1 U Agreement No: A5283 Contract Compliance Exhibits: Included Signatures: Included Insurance: nla Bonds: nla Contract prepared by: Community & Economic Development Department Submitted on: 12-21-2023 By: Jennifer Henning r r AMENDMENT NO. 3 TO AMENDED AND RESTATED LEASE (ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES) AT 211 SOUTH PALM CANYON DRIVE This THIRD AMENDMENT ("Third Amendment") to the Amended and Restated Lease Agreement ("Amendment") is made and entered into this W day of c bt , 2023, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City" or "Lessor"), and the ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES, an S-Corporation ("Lessee"), for the lease of 211 South Palm Canyon Drive located within the "Village Green" in Palm Springs, California. RECITALS WHEREAS, the City and the Lessee entered into an amended and restated lease agreement ("Lease Agreement") on November 18, 2013; and WHEREAS, the Lease Agreement was for an initial period of five years, beginning November 18, 2013 and ending November 17, 2018, with the option of one additional five-year term subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term; and WHEREAS, the City and Lessee entered into a First Amendment to extend the Lease term by five years subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term; and WHEREAS, the City and Lessee entered into a Second Amendment on October 12, 2023, to extend the Lease term by five years, beginning November 18, 2023, and ending November 17, 2028; and WHEREAS, the City and Lessee desire to amend the lease to increase the rent based on previous and current year Consumer Price Index increases, consistent with the terms and conditions of the Lease Agreement. NOW, THEREFORE, in consideration of the mutual promises of the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Lessee agree to amend the Lease as follows: Starting monthly rent effective November 18, 2023, shall be adjusted to $2,299.18. 2. Replace Section 1.3 in its entirety with the follow: 1.3 Rental. Rental shall be $2,299.18 per month, with Tenant to pay all operational utility and maintenance cost necessary to operate the Premises in accordance with the maintenance standards of Section 5.3 and other provisions of the Lease. Upon each anniversary date of the Commencement Date, monthly rental shall be adjusted (i) in an amount equal to the increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics (December 2017 = 100) [the "CPI"] for "All Items -All Urban Consumers", for the Riverside -San Bernardino -Ontario Metropolitan Statistical Area, during the preceding twelve (12) month period; or three percent (3%), whichever is greater. The base month for increases under this Section shall be the most recently measured twelve (12) month period prior to the commencement of each annual anniversary of the Commencement Date, 3. All other terms and conditions of the Lease Agreement shall remain in full force and effect. 4. Counterparts. This Third Amendment may -be executed in one or more counterparts. [Signatures on following page] IN WITNESS WHEREOF, this Third Amendment is effective as of the date of City Council approval below. Date: 21112-111 , APPROVED AS TO FORM: By: Je alliKger, City Attorney "CITY" City of Palm Springs By: S ott C. Stiles, ICMA-CM City Manager ATTEST By: Arenda�ree, MMC, CERA City Clerk APPROVED BY CITY COUNCIL ARENAS ASSOCIATES dba D��-*�b« �yOd`}r-+n �• (� PALM SPRINGS FUDGE & CHOCOLATES /152g3 By: Lufta Mobarak, Owner 3 CONTRACT ABSTRACT Contract Company Name: ARENAS ASSOCIATES dba Palm Springs Fudge & Chocolates Company Contact: Lutfa Mobarak, Owner Summary of Services: Amendment No. 2 to Amended and Restated Lease Lease Term: Starting monthly rent effective November 18, 2023, shall be adjusted to $1,966.35, with Tenant to pay all operational utility and maintenance cost necessary to operate the Premises. Upon each anniversary date of the Commencement Date, monthly rental shall be adjusted in an amount equal to the increase in the Consumer Price Index, for the Los Angeles -Long Beach -Anaheim Metropolitan Statistical Area, during the preceding twelve (12) month period; or three percent (3%), whichever is greater. Funding Source: N/A Contract Term: November 17, 2028 Contract Administration Lead Department: Community & Economic Development Contract Administrator: Jennifer Henning Contract Approvals Council Approval Date: October 12, 2023 Agreement No: A5283 Contract Compliance Exhibits: Included Signatures: Included Insurance: n/a Bonds: n/a Contract prepared by: Community & Economic Development Department Submitted on: 10-31-2023 By: Jennifer Henning AMENDMENT NO. 2 TO AMENDED AND RESTATED LEASE (ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES) AT 211 SOUTH PALM CANYON DRIVE This SECOND AMENDMENT ("Second Amendment') to the Amended and Restated Lease Agreement ("Amendment') is made and entered into this 12. day of OGfobtr , 2023, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City" or "Lessor"), and the ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES, an S-Corporation ("Lessee"), for the lease of 211 South Palm Canyon Drive located within the "Village Green" in Palm Springs, California. RECITALS WHEREAS, the City and the Lessee entered into an amended and restated lease agreement ("Lease Agreement') on November 18, 2013; and WHEREAS, the Lease Agreement was for an initial period of five years, beginning November 18, 2013 and ending November 17, 2018, with the option of one additional five-year term subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term; and WHEREAS, the City and Lessee entered into a First Amendment to extend the Lease term by five years subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term; and WHEREAS, the City and Lessee desire to amend the lease to allow for the option of one additional five-year term subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term. NOW, THEREFORE, in consideration of the mutual promises of the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Lessee agree to amend the Lease as follows: 1. The term of this Lease shall be extended for five years from November 18, 2023 to November 17, 2028. 2. Starting Monthly rent effective November 18, 2023, shall be adjusted to $1,966.35. 3. Replace Section 1.3 in its entirety with the follow: 1.3 Rental. Rental shall be $1,966.35 per month, with Tenant to pay all operational utility and maintenance cost necessary to operate the Premises in accordance with the maintenance standards of Section 5.3 and other provisions of the Lease. Upon each anniversary date of the Commencement Date, monthly rental shall be adjusted (i) in an amount equal to the increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics (1982-1984 = 100) [the "CPI] for "All Items -All Urban Consumers", for the Los Angeles -Long Beach -Anaheim Metropolitan Statistical Area, during the preceding twelve (12) month period; or three percent (3%), whichever is greater. The base month for increases under this Section shall be the most recently measured twelve (12) month period prior to the commencement of each annual anniversary of the Commencement Date. 4. All other terms and conditions of the Lease Agreement shall remain in full force and effect. 5. Counterparts. This Second Amendment may be executed in one or more counterparts. [Signatures on following page] IN WITNESS WHEREOF, the this Second Amendment is effective as of the date of City Council approval below. "CITY" City of Palm Springs Date:T/� 3 By: Scott C. Stiles, ICMA-CM City Manager APPROVED AS TO FORM: ATTEST 7 By. By: —� J Ba ng r, Brenda Pree, MMC, CERA City Attorney City Clerk APPROVED BY CITY COUNCIL C3clybQr lT 043 J�PA*, /. C ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES By: 4 Ntral�- Lufta Mobarak, Owner a►coRK7T CERTIFICATE OF LIABILITY INSURANCE - DATE IMWDD/YYYY) 10/22/2023 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(les) must be endorsed. If SUBROGATIONIS 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 endoTsement(s). PRODUCER CONTACT NUTMEG INSURANCE AGENCY INC/PHS NAME' 02025657 The Hartford Business Service Center PHONE (866) 467-8730 (AIC, No, Este FAX (A/C, No): 3600 Wiseman Blvd E-MAIL San Antonio, TX 78251 ADDRESS INSURER(S) AFFORDING COVERAGE NAICa INSURED INSURER A: Hartford Casualty Insurance Company 29424 ARENAS ASSOCIATES INC. DBA PALM SPRINGS FUDGE AND CHOCOLATES 211 S PALM CANYON DR INSURER B: Hartford Accident and Indemnity Company 22357 INSURERc: INSURER D PALM SPRINGS CA 92262-6310 INSURER E INSURER F COVERAGES UtK I IHIGA I E NUMBER: REVISION NIlYaicc- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATEDMOTWITHSTANDING 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. INSP TYPE OF INSURANCE AWL SUER D POLICY NUMBER POLICY EFF IMMyDDryyYy1 POLICY E P LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE CIANSWADE❑OCCUR DAMA ETO RENTED PREMISES MED EXP (Any one person) PERSONAL S ADV INJURY GEN'L AGGREGATE LIMIT APPLIES PER POLICY❑PRO- ❑LOC 1. ECT GENERAL AGGREGATE PRODUCTS-COMP/OP AGG OTHER AUTOMOBILE LIABILITY (Easco d ml EDSINGLE LIMIT S1,000,0DO ANY AUTO BODILY INJURY (Per person) B ALL OAMED SCHEDULED AUTOS X AUTOS 02 LEG AA6142 11/20/2023 11/2012024 BODILY INJURY (Per acadenl) HIRED NON{yAMED AUTOS AUTOS PROPERTY DAMAGE (PetaCcadenl) UMBRELLA UAe OCCUR EACH OCCURRENCE EXCESS LIAR CLAIMS - MADE AGGREGATE ED RETENTION A WORKEKSCOMPENSATN)N AND EMPLOYERS' LIABILITY ANY YIN PROPRIETORMARTNER/EXECUTWE OFFICER/MEMBER EXCLUDED'E W A 02 WIEC CP1964 12/01/2023 12/012024 X PERUT AT OTM- ER E.L. EACH ACCIDENT 51,000,000 L DISEASE -EA EMPLOYEE $1,000,000 (Mandatory In NH) E L DISEASE- POLICY LIMIT S1.000.000 It yes. describe under DESCRIPTION F OPERATIONS DESCRIPTION OFOPERATIONS y LOCATIONS /VEHICLES IACORO 101, Additional Remarks Schedule, may be attached U more space Is required) Those usual to the Insured's Operations. zh7iLEEIaMACAII:170J Re mmwmwffa.�ar�yviir. . The City of Palm Springs SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED Its officials, employees and agents BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED 3200 E TAHQUITZ CANYON WAY IN ACCORDANCE WITH THE POLICY PROVISIONS. PALM SPRINGS CA 92262-6959 AUTHORRED REPRESENTATIVE 1--l116a.J C30 Cat> 01988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: LOC#: a►�-o ADDITIONAL REMARKS SCHEDULE Page 2 of 2 AGENCY NUTMEG INSURANCE AGENCY INC/PHS NAMED INSURED ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND CHOCOLATES 211 S PALM CANYON DR PALM SPRINGS CA 92262-6310 POLICY NUMBER SEE ACORD 25 CARRIER SEE ACORD 25 NAIC CODE EFFECTIVE DATE: SEE ACORD 25 THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM FORM NUMBER: ACORD 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The City of Palm Springs, its officials, employees and agents is an additional insured per the Business Liability Coverage Form SS0008 attached to this policy. Waiver of Subrogation applies in favor of the Certificate Holder per the Business Liability Coverage Form SS0008, attached to this policy. Notice of Cancellation will be provided in accordance with Form SS1230, attached to this policy. Coverage is primary and noncontributory per the Business Liability Coverage Form SS0008, attached to this policy. ACORD 101 (2014/01) © 2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD AMENDMENT NO. 1 TO AMENDED AND RESTATED LEASE (ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES) This Amendment No. 1 to the Amended knd Rest ted Lease Agreement ("Amendment') is made and entered into this I i' day of Wti 2018, by and between the City of Palm Springs ("City") and Arenas Associates dba Palm Springs Fudge & Chocolates, an S-Corporation ("Tenant'), for the lease of 211 South Palm Canyon Drive located within the "Village Green" in Palm Springs, California. RECITALS WHEREAS, the City and Tenant previously entered into an amended and restated lease agreement ("Lease Agreement') on November 18, 2013; and WHEREAS, the Lease Agreement was for an initial period of five years, beginning November 18, 2013 and ending November 17, 2018, with the option of one additional five-year term subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term; and WHEREAS, the City and Tenant desire to renew the Lease Agreement for the five-year extension option term at the mutually agreed value. NOW, THEREFORE, the City and Tenant do hereby mutually agree as follows: AGREEMENT 1. The term of the Facility Use Agreement shall be extended for five years from November 18, 2018 to November 17, 2023. 2. Starting Monthly rent effective November 18, 2018 shall be adjusted to $1,903.53. 3. Replace Section 1.3 in its entirety with the following: 1.3 Rental. Rental shall be $1,903.53 per month, with Tenant to pay all operational utility and maintenance cost necessary to operate the Premises in accordance with the maintenance standards of Section 5.3 and other provisions of the Lease. Upon each anniversary date of the Commencement Date, monthly rental shall be adjusted (i) in an amount equal to the increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics (1982-1984 = 100) [the "CPI"] for "All Items -All Urban Consumers", for the Los Angeles -Long Beach -Anaheim Metropolitan Statistical Area, during the preceding twelve (12) month period; or (ii) three percent (3%), whichever is greater. The base month for increases under this Section shall be the most ORIGINAL BID AND/OR AGREEMENT recently measured twelve (12) month period prior to the commencement of each annual anniversary of the Commencement Date. 4. Replace Section 12.9 in its entirety with the following: 12.9 Nondiscrimination. In connection with its performance under this Agreement, Tenant 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"). Tenant 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, Tenant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Tenant 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; leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the Premises herein leased; and further, that Tenant 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. All other terms and conditions of the Lease Agreement shall remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] A� R� CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDIYVYIT 11n72018 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 be endorsed. If SUBROGATIONIS 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 endomement(s). PRODUCER CONTACT NUTMEG INSURANCE AGENCY INC/PHS NAME: 02025657 THE HARTFORD BUSINESS SERVICE CENTER 3600 WISEMAN BLVD SAN ANTONIO, TX 78265 Iac,N-.Edl: (866) 467-8730 PMAXC,No): (888) 443-6112 E-MAIL ADDRESS - INSURER(SIAFFOROINGCOYERAGE NAICI INSURED INSURERA: The Hartford Accident and Indemnity 22357 ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND Insurance Company CHOCOLATES 211 S PALM CANYON DR INSURER B: The Sentinel Insurance Company 111000 INSURER C PALM SPRINGS CA 92262-6310 INSURER 0 INSURER E INSURER F : CI THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWTTHSTANDING 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. INSA TYPE OF INSURANCE ADDL INSIR SUBS WVO POLICYNUMBER POLICY EFF POLICY UP IMMMDNYYYI LIMITS COMMERCIAL GENERAL LIABILITY CLAWS+AADE QOCCUR EACH OCCURRENCE $1,00000 DAMAGE TO RENTED $1.000.00 General Liability MED EXP(My ana p,Yaa,) X X X $10,000 B 02 SBA AH9489 12/01/2018 12/012019 PERSONAL aADVINIURY AGGREGATE LIMIT APPLIES PER IOC -PRO-OECT POLICY El GENERAL AGGREGATE $2,000,00 GEN'L PROLTS-COMP/OP AGO IXI $2,000,00 OTHER AUTOMOBILE LIABILITY COMBINED SINGLE LIMB IEaa mU $1,000,0 ANY AUTO BODILY INJURY (Pef parm) A ALL OWNED X SCHEDULED AUTOS O2 UEC A6142 110/2016 11/20019 XXAUTOS BODILY INJURY (Pr eaiaM ) HIREDAUrOS NOOMED AUi05 PROPERTY DAMAGE Par amdant UNBRELLA 4A8 OCCUR EACH OCCURRENCE E%CESS LIAB CWNSAIADEAGGREGATE DEO RETENTION $ WORKERS COMPENSATION AND ENPLOYERS' DABILJTY X PER TA OTH_ R E.L EACH ACCIDENT $1,000,00 B ANY PROPMETONIRARTNERFXECUTIYE yM OFFICERAAEMBER E)LCUIDED? (Mandatory In NH) NIA 02 WEC CP1964 12/012018 12/01/2019 EL DISEASE -EA EMPLOYEE $1,000,00 B yea, dm naa wdr DESCRIPTION OF OPF OAS bNw E.1- NSEASE-POLICY LIMIT $1.000,000 DESCRIPTION OFOPERATIONS/LOCATIONS /YEINCLES (ACGRO 101, Addkbnal Remade Schedule, may to attached Nmaraapaca h nAWred) Those usual to the Insured's Operations. ITS OFFICIALS, EMPLOYEES AND AGENTS 3200 E TAHQUITZ CANYON WAY PALM SPRINGS CA 92262-6959 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CJ man o7� L RO�ir�o%�r_l 01988-2015 ACORD CORPORATION. AB rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD IN WITNESS THEREFORE, these parties have executed this Amendment on the day and year first set forth above. CITY OF PALM SPRINGS ����/ Date: David H. Ready, City M ger APPROVED AS TO --Q�`Z;;o� .o., Edward Z. Kotkin, Ci Atte ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES CO APPROVED P:yrrry Cmt4r_j\ ^-, P 3 yg5a83 L Date: Lutfa Mo arak, Owner n� THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION OR NONRENEWAL TO DESIGNATED GOVERNMENTAL ENTITY Number of Days Notice: Name of Governmental Entity: PARTA: 30 ✓ THE CITY OF PALM SPRINGS ITS OFFICIALS, EMPLOYEES AND AGENT PART B: Mailing Address: PART C. 3200 E TAHQUITZ CANYON WAY PO BOX 2743 PART D: PALM SPRINGS, CA 92263-2743 This policy is subject to the following additional Conditions when a number of days are shown in the schedule for any of the above Parts. A. If this policy is cancelled by the Company, other than for non-payment of premium, or if coverages or limits are reduced below the minimum level contractually required by the governmental entity, notice of such cancellation or reduction will be provided to the governmental entity in the schedule, at least the number of days in advance of the cancellation effective date, as shown in Part A. B. If this policy is cancelled by the Company for non- payment of premium, notice of such cancellation will be provided to the governmental entity in the schedule within the number of days notice of the cancellation effective date, as shown in Part B. C. If this policy is cancelled by the insured, notice of such cancellation will be provided to the governmental entity in the schedule, within the number of days notice of the cancellation effective date, as shown in Part C. D. If this policy is nonrenewed by the Company, notice of such nonrenewal will be provided to the Form SS 12 30 06 11 Process Date: governmental entity in the schedule, at least the number of days in advance of the nonrenewal effective date, as shown in Part D. If notice is mailed, proof of mailing notice to the governmental entity's mailing address as shown in the schedule will be sufficient proof of notice. If the number of days notice in the schedule for any Part is left blank or is shown as zero, no notice will be provided to the scheduled governmental entity under that Part. Any notification rights provided by this endorsement apply only to active governmental entity(ies) who were issued a certificate of insurance applicable to this policy's term. Page 1 of 1 Expiration Date: 12/01/19 © 2011, The Hartford AGENCY CUSTOMER ID: LOC#: ADDITIONAL REMARKS SCHEDULE Page 2 of 2 AGENCY NAMED INSURED NUTMEG INSURANCE AGENCY INCIPHS ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND CHOCOLATES POLICY NUMBER SEE ACORD 25 211 S PALM CANYON DR PALM SPRINGS CA 92262 CARRIER NAIL CODE SEE ACORD 25 EFFECTIVE DATE: SEE ACORD 25 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM FORM NUMBER: ACORD 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The City of Palm Springs, its officials, employees and agents is an additional insured per the Business Liability Coverage Form SS0008 attached to this policy. Waiver of Subrogation applies in favor of the Certificate Holder per the Business Liability Coverage Form SS0008, attached to this policy. Notice of Cancellation will be provided in accordance wl i— M7 rm SS1230, attached to this policy. Coverage is primary and noncontributory per the Business Liability Coverage Form SS0008, attached to this policy. ACORD 101 (20114/01( © 2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 02 SBA AH9489 r� THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF SUBROGATION THE CITY OF PALM SPRINGS, ITS OFFICIALS, EMPLOYEES AND AGENTS 3200 E TAHQUITS CANYON WAY PALM SPRINGS, CA 92262-6959 Form IH 120011 85 11/26/2018 Printed in U.S.A. Page 1 Expiration Date:12/01/19 POLICY NUMBER: 02 SBA AH9489 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - PERSON - ORGANIZATION THE CITY OF PALM SPRINGS, ITS OFFICIALS, EMPLOYEES AND AGENTS 3200 E TAHQUITS CANYON WAY PALM SPRINGS, CA 92262-6959 Form IH 120011 55 11/26/2018 Printed in LIZA. Page 1 Expiration Date:12/01/19 CERTIFICATE OF LIABILITY INSURANCE FDAMIDDAY 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 (NSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. If SUBROGATIONIS 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 endorsemem(s). PRODUCER NUTMEG INSURANCE AGENCY INC/PHS CONTACT NAME: 02025657 THE HARTFORD BUSINESS SERVICE CENTER 3600 WISEMAN BLVD SAN ANTONIO, TX 78265 (AAXX.M%EXU: (866) 467-8730 wc,NPl: (888) 44MI12 E-MAIL ADDRESS - INSURERISI AFFORDINGCOVERAGE NAICA INSURED INSURERA: The Hartford Accident and Indemnity 22357 ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND Insurance Company CHOCOLATES INSURER0: The Sentinel Insurance Company 111000 211 S PALM CANYON DR INSURER C: PALM SPRINGS CA 92262-6310 INSURER D INSURER E: INSURER F: MI "RE R THIS IS TO CERTIFY TWIT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATEDMOTWITHSTANDING 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. UMfTS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSP TYPE OF INSURANCE AWL SUBF POLICY NUMBER POLICY EFF N POLICY UP M Own B COMMERCIAL GENERAL LIABILITY CLANA"ADE QOCCUR General Liability 02 SBA AH9489 12/01/2017 12/012018 EACH OCCURRENCE $1 000 DAMAGETO RENTEO MEDEXP(ArryFmW ) $1 000 ,000 X GENL X X $10,COO 1 PERSONAL B ADV INJURY$1000.00( AGGREGATE LIMIT APPLIES PER-. POLICY ❑ JEo- � LOC OTHER GENERAL AGGREGATE $2,000,00 PRODUCTS-COMPMJPAUCI $2,000,00( A AUTOMOBILE LIABILITY ANY AUTO CANNED X SCHEDULED AUTOS HIRED AUTOB NONdYMED AUTOS 02 UEC AA6142 11202018 11202019 COMBINED SINGLE LIMB (E... W m) $1 Q� BODILY INJURY (Par IX+sm1 X X SOIXLY NJORY(PersmdnXl PROPERTY DAMAGE vAVJdud UMBRELLA OR EXCESS UAB OCCUR CIABBSMAOE EACHOCCURRENCE AGGREGATE DEO RETENTION $ B WORMERS COMPENSATION AND EMPLOYERS' LIABILITY ANYPROPRIETORNARTNERJEXECUTIVE YIN OFFICERIMEMBER EXCLUOEO> (Mandatoryln NH) P yea. RTTIOIPe OMer F OPON NIA 02 WEC CP1964 12/012017 12/01/2018 X PER T OTH- R EL EACH ACCIDENT EL DISEASE -EA EMPLOYEE $1,000.00 LLpSEASE- POLICYIaMIT $1,000,0 OESCRIPRONOFOPERATTONS/LCCAROMS/ VENICLES(ACORD 1M, AdditlorW Re rlu Sdie mry W atddred ame space is meA,imd) Those usual to the Insured's Operations. CERTIFICATE HOLDER CANCELLATION THE CITY OF PALM SPRINGS SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE ITS OFFICIALS, EMPLOYEES AND AGENTS THE EXPIRATION DATE THEREOF, NOTICE WALL BE DELIVERED IN 3200 E TAHQUITZ CANYON WAY ACCORDANCE A1TH THE POLICY PROVISIONS. AUTHORUMO REPRESENTATIVE PALM SPRINGS CA 92262-6959 U lea'If 41 l 5t ule�� C 1988-2016 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD F1 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA Policy Number: 02 SBA AH9469 Endorsement Number: 001 Effective Date: Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND CHOCOLATES 211 S PALM CANYON DR PALM SPRINGS CA 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.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5 otherwise due on such remuneration. Person or Organization "The City of Palm Springs Its officials, Employees and Agent 3200 E Tahquitz Canyon Way P. O. Box 2743 Palm Springs, CA 92263-2743 SCHEDULE % of the California workers' compensation premium fF_\�i�iri777 Job Description Countersigned by Authorized Representative Form WC 04 03 06 (1) Printed in U.S.A. Process Date: Policy Expiration Date: 12/o1/19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION OR NONRENEWAL TO DESIGNATED GOVERNMENTAL ENTITY Number of Days Notice: Name of Governmental Entity: PARTA: 30 THE CITY OF PALM SPRINGS ITS OFFICIALS, EMPLOYEES AND AGENT PART B Mailing Address: PART C: 3200 E TAHQUITZ CANYON WAY PO BOX 2743 PART D: PALM SPRINGS, CA 92263-2743 This policy is subject to the following additional Conditions when a number of days are shown in the schedule for any of the above Parts. A. If this policy is cancelled by the Company, other than for non-payment of premium, or if coverages or limits are reduced below the minimum level contractually required by the governmental entity, notice of such cancellation or reduction will be provided to the governmental entity in the schedule, at least the number of days in advance of the cancellation effective date, as shown in Part A. B. If this policy is cancelled by the Company for non- payment of premium, notice of such cancellation will be provided to the governmental entity in the schedule within the number of days notice of the cancellation effective date, as shown in Part B_ C. If this policy is cancelled by the insured, notice of such cancellation will be provided to the governmental entity in the schedule, within the number of days notice of the cancellation effective date, as shown in Part C. D. If this policy is nonrenewed by the Company, notice of such nonrenewal will be provided to the governmental entity in the schedule, at least the number of days in advance of the nonrenewal effective date, as shown in Part D. If notice is mailed, proof of mailing notice to the governmental entity's mailing address as shown in the schedule will be sufficient proof of notice. If the number of days notice in the schedule for any Part is left blank or is shown as zero, no notice will be provided to the scheduled governmental entity under that Part. Any notification rights provided by this endorsement apply only to active governmental entity(ies) who were issued a certificate of insurance applicable to this policy's term. Form SS 12 30 0611 Page 1 of 1 Process Date: Expiration Date: 12 / C 1 / 18 © 2011. The Hartford AGENCY CUSTOMER ID: LOCR: ADDITIONAL REMARKS SCHEDULE Page 2 of s AGENCY NAMEDINSUREG NUTMEG INSURANCE AGENCY INC/PHS ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND CHOCOLATES PDl1CY NUMBER SEE ACORD 25 211 S PALM CANYON DR PALM SPRINGS CA 92262 CARRIER NM Moe SEE ACORD 25 EEFECENE DAiE: SEE ACORD 25 THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM FORM NUMBER: ACORD 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The City of Palm Springs, its officials, employees and agents is an additional insured per the Business Liability Coverage Form SS0008 attached to this policy. Waiver of Subrogation applies in favor of the Certificate Holder per the Business Liability Coverage Form SS0008, attached to this policy. Notice of Cancellation will be provided in accordance with Form SS1230, attached to this policy. Coverage is primary and noncontributory per the Business Liability Coverage Form SS0008, attached to this policy. POLICY NUMBER:02 SBA AH9489 F� THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF SUBROGATION THE CITY OF PALM SPRINGS, ITS OFFICIALS, EMPLOYEES AND AGENTS 3200 E TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262-6959 Form IH 12 00 1186 T SEQ. NO. 002 Printed In U.S.A. Pape 001 Process Date: 11/26/18 Expiration Date: 12/01/18 POLICY NUMBER:02 SBA AH9489 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - PERSON -ORGANIZATION THE CITY OF PALM SPRINGS, ITS OFFICIALS, EMPLOYEES AND AGENTS 3200 E TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262-6959 Form IH 12 00 1185 T SEQ. NO. 001 Printed in U.S.A. Page 001 Process Date: 11 / 19 / 18 Expiration Date: 12 / 01 / 18 FRI THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA Policy Number: 02 SBA AH9489 Endorsement Number: 003 Effective Date: Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: ARENAS ASSOCIATES INC, DBA PALM SPRINGS FUDGE AND CHOCOLATES 211 S PALM CANYON DR PALM SPRINGS CA 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.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5 otherwise due on such remuneration. SCHEDULE Person or Organization "The City of Palm Springs Its Officials, Employees and Agent 3200 E Tahquitz Canyon Way P. O. Box 2743 Palm Springs, CA 92263-2743 Countersigned by % of the California workers' compensation premium LANDLORD Job Description Authorized Representative Form WC 04 03 06 (1) Printed in U.S.A. Process Date: Policy Expiration Date: 12/01/18 AMENDED AND RESTATED LEASE By and Between CITY OF PALM SPRINGS and ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES IRV#21100v1 o puckh':T coo"nR o AMENDED AND RESTATED LEASE THIS LEASE (`lease") is made and entered into e^day of 2013, by and between the CITY OF PALM SPRINGS, (referred to variously as "Landlord" or "City"), and Arenas Associates dba Palm Springs Fudge & Chocolates ("Tenant"). RECITALS A. WHEREAS Palm Springs Fudge & Chocolates serves tourists and visitors to the downtown area; and B. WHEREAS the City of Palm Springs ("City") owns the property located at the "Village Green", 211 South Palm Canyon Drive in Palm Springs, California ("Facility"). The Facility is used by Palm Springs Fudge & Chocolates to provide retail sales of confections and associated products; making fudge and hand dipped chocolates; 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 County of Riverside, State of California, as depicted in the Legal Description Of The Premises attached as Exhibit "A" hereof and on the Plot Plan attached as Exhibit `B-I" hereof. The Premises shall be exclusively used by the Tenant. 1.2 Lease Commencement Date. The Lease shall commence Vou t 2013 and shall end on QW 1'7 2018, with an option to extend lease terms for a period of five (5) years, unless earlier terminated. Tenant shall give landlord at least ninety (90) days notice of its intent to exercise this option. 1.2.1 Fair Market Rent upon Option to Extend. The parties shall have sixty (60) days after Landlord receives the option notice in which to agree on minimum monthly rent for the first year of the extended term. The rent shall be based on the fair market rent for similar property at that time. If the parties agree on said minimum monthly rent during that period, they shall immediately execute an amendment to this Lease stating the minimum monthly rent. If the parties are unable to agree on said minimum monthly rent within that period, the option notice shall be of no effect and this Lease shall expire at the end of the initial term. Neither party to this Lease shall have the right to have a court or other third party set the minimum monthly rent. IRV #21100 v[ -1- 1.3 Rental. Rental shall be $1,707.53 per month, with Tenant to pay all operational, utility and maintenance cost necessary to operate the Premises in accordance with the maintenance standards of Section 5.3 and the other provisions of the Lease. Upon each annual anniversary date of the Commencement Date, monthly rental shall be adjusted in proportion to the published changes in the Consumer Price Index ("CPI") for, All Items, for the Riverside/San Bernardino Metropolitan Statistical Area. 1.3.1 Additional Rental. For the purposes of this Lease, all monetary obligations of Tenant under this Lease, including, but not limited to, insurance premiums, property taxes, maintenance expenses, late charges and utility costs shall be deemed to be additional rental. 1.4 Security ftosit. $1,100.00. (See Section 3.6) 1.5 Use of Premises. Premises shall be used for retail sales of confections and associated products including fudge and hand dipped chocolates. Tenant shall make good faith efforts to coordinate usage of the Premises with the City. 1.6 Tenant's Address for Notices. Arenas Associates 211 South Palm Canyon Way Palm Springs, CA 92262 Telephone: 760-416-0075 With a copy to: City of Palm Springs David H. Ready, Esq., Ph.D., Executive Director 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 IRV #21100 vi -2- 2.0 TERM. 2.1 Term. The term of this Lease shall commence on the date specified in Section 1.2 ("Commencement Date") and shall continue for the period specified therein unless earlier terminated as provided herein. 2.2 Termination By Landlord. Landlord shall have the right to terminate this Lease effective on any anniversary of the Commencement Date, with or without cause, by providing Tenant with at least sixty (60) days' advance written notice. If Landlord terminates this Lease as provided in this Section, 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. 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 at a rental equal to one hundred fifty percent (150%) of the last applicable Monthly Rental and upon terms and conditions as existed during the last year of the term hereof. 3.1 Monthly Rental. Tenant shall pay to Landlord, during the term of this Lease from and after the Commencement Date as monthly rental ("Rental") for the Premises the sum specified in Section 1.4 hereof, which sum shall be paid in advance on the first day of each month of the term of this agreement. 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 12.10 hereof. 3.2 Real Property Taxes. In addition to all rentals herein reserved, Tenant shall pay, directly to the taxing authority, annual real estate taxes and assessments levied upon the Premises (including any possessory interest taxes), 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. Such amount shall be paid on the date that is twenty (20) days prior to the delinquent date or, if Landlord receives the tax bill, ten (10) days after receipt of a copy of the tax bill from Landlord, whichever is later. Even though the term of this Lease has expired and Tenant has vacated the Premises, when the final determination is made of Tenant's share of such taxes and assessments, Tenant shall immediately pay to Landlord the prorated amount of any additional sum owed. 3.3 Personal Property Taxes. During the term hereof Tenant shall pay prior to delinquency all taxes assessed against and levied upon fixtures, furnishings, equipment and all other personal property as of Tenant contained in the Premises, and when possible Tenant shall cause said fixtures, furnishings, equipment and other personal property to be assessed and billed separately from the real property of Landlord. 3.4 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 IRva2noovI -3- costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Tenant not paid when 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. 3.5 Interest. Any sum to be paid pursuant to the terms of this Lease not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non -usurious rate permitted by law in which case interest shall be at the maximum non -usurious rate allowed by law at the time the sum became due. 3.6 Security Deposit. Tenant has previously with the execution of the original Lease dated June 1, 1995, deposited with the Landlord the sum specified in Section 1.4 hereof, receipt of which is hereby acknowledged by Landlord, said deposit being given to secure the faithful performance by the Tenant of all terms, covenants, and conditions of this Lease by the Tenant to be kept and performed during the term hereof. Tenant agrees that if the Tenant shall fail to pay the rent herein reserved or any other sum required hereby promptly when due, said deposit may, at the option of the Landlord (but Landlord shall not be required to) be applied to any rent or other sum due and unpaid, and if the Tenant violates any of the other terms, covenants, and conditions of this Lease, said deposit may, at Landlord's option, be applied to any damages suffered by Landlord as a result of Tenant's default to the extent of the amount of the damages suffered. Nothing contained in this Section shall in any way diminish or be construed as waiving any of the Landlord's other remedies as provided in Section 10.0 hereof, or by law or in equity. Should the entire security deposit, or any portion thereof, be appropriated and applied by Landlord for the payment of overdue rent or other sums due and payable to Landlord by Tenant hereunder, then Tenant shall, on the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore said security deposit to its original amount, and Tenant's failure to do so within five (5) days after receipt of such demand shall constitute a breach of this Lease. Should Tenant comply with all of the terms, covenants, and conditions of this Lease and promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant to Landlord hereunder, said security deposit shall be returned in full to Tenant at the end of the term of this Lease, or upon the earlier termination of this Lease as specified herein except in the event the Premises are sold as a result of the exercise of any power of sale under any mortgage or deed of trust, in which event this Lease shall be automatically amended to delete any reference to this Section and Tenant shall be entitled to immediate reimbursement of its security deposit from the party then holding said deposit. IRV #21100 v1 4- 4.0 USE OF THE PREMISES. 4.1 Permitted Use. The Landlord hereby leases to Tenant and Tenant hires from Landlord the exclusive use of the Premises, with improvements as defined herein, for the purpose of conducting thereon only the use specified in Section 1.6 of this Lease. 4.2 Prohibited Uses. Tenant shall not sell or permit to be kept, displayed or sold in or about the exclusive Premises (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia, or other material which would be considered lewd, obscene or licentious, (b) any article which may be prohibited by standard forms of fire insurance policies, or (c) any alcoholic beverages unless expressly permitted by Section 1.6 hereof. 4.3 Compliance with Laws. Tenant shall, at his sole cost and expense, comply with all of the requirements of all municipal, state and federal authorities now in force or which may hereafter be in force pertaining to the use of the Premises and shall faithfully observe in said use all municipal ordinances, including, but not limited to, the General Plan and zoning ordinances, state and federal statutes, or other governmental regulations now in force or which shall hereinafter be in force. Tenant's violation of law shall constitute an incurable default under this Lease. The judgment of any court of competent jurisdiction, or the admission of Tenant in any action or proceeding against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any such order or statute in said use, shall be conclusive of that fact as between the Landlord and Tenant. Tenant shall not engage in any activity on or about the Premises that violates any Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or Environmental Law for clean-up and removal of any contamination involving any Hazardous Material created or caused directly or indirectly by Tenant. The term "Environmental Law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Premises, including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii) California Health and Safety Code Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.; (v) California Health and Safety Code Section 25359.7; (vi) California Health and Safety Code Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.; (viii) California Water Code Section 1300 et seq.; and (ix) California Civil Code Section 3479 et seq., as such laws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the parties hereto to construe the terms "Hazardous Materials" and `Environmental Laws" in their broadest sense. Tenant shall provide all notices required pursuant to the Safe IRV #21100 vI _g_ Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq. Tenant shall provide prompt written notice to Landlord of the existence of Hazardous Substances on the premises and all notices of violation of the Environmental Laws received by Tenant. 4.4 Signs. Tenant shall have the right to place a sign at the entrance to the Premises in accordance with the City's Zoning Code pertaining to signs, and 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 Tenants approval. 4.5 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 nonexclusive 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. 4.5.1 Maintenance of Common Areas. During the entire term hereof, Landlord shall keep or cause to be kept the parking and common areas as same are established and completed by Landlord in a good, neat, clean and orderly condition, properly lighted and landscaped, and shall repair any damage to the facilities thereof as well as the exterior walls and roof of the Demised Premises as provided in Article 5.2, but all expenses in connection with said parking and common areas shall be charged and prorated in the manner hereinafter set forth. Tenant agrees to pay to Landlord Tenant's pro rata share of the total expenses in connection with the parking and common areas. Tenant'i pro rata share of such expenses shall be that portion of all such expenses which is equal to the proportion thereof which the number of square feet of gross floor area in the Demised Premises bears to the total number of square feet of gross leasable floor area of all buildings in the Property occupied as of the commencement of each calendar month. There shall be an appropriate adjustment of Tenant's share of the expenses in connection with the parking and common areas as of the commencement and expiration of the term of this Lease. 4.6 Hours of Business. Subject to the provisions of Section 8.0 hereof, Tenant shall continuously during the entire term hereof conduct and carry on Tenants business in the Premises and shall keep the Premises open for business and cause Tenant's business to be conducted therein during the usual business hours of each and every business day. If scheduling patterns may change and in that event, Tenant shall report those changes to the City in writing. This provision shall not apply if the Premises should be closed and the business of Tenant temporarily discontinued therein on account of strikes, lockouts, or similar causes beyond the reasonable control of Tenant including weather, traffic delays, border delays, equipment failures. IRV #21100 vi -6- 4.7 Utilities. Tenant shall pay before delinquency all charges for water, gas, electricity, power, sewer, telephone service, trash removal (unless included in the expenses to maintain the common and parking areas) and all other services and utilities used in, upon, or about the Demised Premises by Tenant or any of its subtenants, licensees, or concessionaires during the term of this Lease. 4.8 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. The rules and regulations, if any, are attached hereto as Exhibit "D" ("Rules and Regulations"). 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. 5.0 ALTERATIONS AND REPAIRS. 5.1 Alterations and Fixtures. Any expansion, amendment, or alteration of the Premises shall be in conformance with the requirements of all municipal, state, federal, and other governmental authorities, including requirements pertaining to the health, welfare or safety of employees or the public and in conformance with reasonable rules and regulations of Landlord. Landlord may require that any such alterations be removed prior to the expiration of the term hereof. Any removal of alterations or furniture and trade fixtures shall be at Tenant's expense and accomplished in a good and workmanlike manner. Any damage occasioned by such removal shall be repaired at Tenants expense so that the Premises can be surrendered in a good, clean and sanitary condition as required by Section 5.2 hereof Any and all fixtures and appurtenances installed by Tenant shall conform with the requirements of all municipal, state, federal, and governmental authorities including requirements pertaining to the health, welfare, or safety of employees or the public. 5.2 Maintenance and Repair. Tenant shall, at all times during the term hereof, and at Tenants sole cost and expense, keep, maintain and repair the Premises, and other improvements within the Premises in good and sanitary order, condition, and repair (except as hereinafter provided) including without limitation, the maintenance and repair of any gates, electrical wiring and conduits. Tenant shall also at its sole cost and expense be responsible for any alterations or improvements to the Premises necessitated as a result of the requirement of any municipal, state or federal authority. Tenant hereby waives all right 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 good and sanitary 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 good, clean and sanitary condition, reasonable use and wear thereof and damage by fire, act of God or by the elements excepted. 5.3 Free from Liens. During the period of construction and thereafter Tenant shall keep the Premises free from any liens arising out of any work performed, material famished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. Upon completion of construction of the improvements Tenant shall assure that lien releases are obtained for all mechanics liens. IRV 021100 v1 _7_ 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 (901/o) of the replacement value of the Tenant's building 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. 6.2 Insurance Provided by Tenant. (a) Food Preparation. Tenant, if involved in food preparation and sales as a cafe, restaurant, or similar use, and/or food takeout service, shall install at Tenant's expense any fire protective systems in grill, deep fry, and cooking areas which are required by city, county, and state fire ordinances, and such system when installed shall qualify for full fine protective credits allowed by the fire insurance rating and regulatory body in whose jurisdiction the Demised Premises are located. (b) 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. (c) 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 and on any rights of way directly adjacent to the Premises written on a per occurrence basis in an amount not less than either (i) a combined single limit of ONE MILLION DOLLARS ($1,000,000.00) for bodily injury, death, and property damage or (ii) bodily injury limits. of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00 products and completed operations and property damage limits of $100,000.00 per occurrence and $250,000.00 in the aggregate; provided, 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. (d) 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. IRV #21 Io0 vl -8- (e) 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 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 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 covered by insurance against the perils of fire, extended coverage, vandalism, malicious mischief, theft, sprinkler damage, and earthquake sprinkler leakage_ Each of the parties, on behalf of their respective insurance companies insuring such property of either Landlord or Tenant against such loss, waive 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. 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 officers, agents 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 negligent 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 parking and Common Area by Tenant or its employees and customers, or arising from the failure of Tenant to keep the Premises in good condition and repair, 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, IRV #21100 vi -9- whether or not there is concurrent passive or active negligence on the part of the Landlord, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the Landlord, its officers, agents 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 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, and employees harmless therefrom; (c) In the event the Landlord, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Tenant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Tenant hereunder, Tenant agrees to pay to the Landlord, its officers, agents or employees, any and all costs and expenses incurred by the Landlord, its officers, agents 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; and if Tenant shall abandon, vacate or surrender the Premises 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 thereof, 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 forthwith make said repairs provided Tenant gives to Landlord thirty (30) days written notice of the necessity therefor. No such partial destruction (including any destruction necessary in order to make repairs required by any declaration made by any public authority) shall in any way annul or void this Lease except that Tenant shall be entitled to a proportionate reduction of Monthly Rental while such repairs are being made, such proportionate reduction to be based upon the extent to which the making of such repairs shall interfere with the business carved on by Tenant in the Premises. However, if ury n2noo vi -10- during the last (1) year of the term of this Lease the Premises are damaged as a result of fire or any other insured casualty to an extent in excess of twenty-five percent (25%) of the then replacement cost (excluding foundations), Landlord may within thirty (30) days following the date such damage occurs terminate this Lease by written notice to Tenant. If Landlord, however, elects to make said repairs, and provided Landlord uses due diligence in making said repairs, this Lease shall continue in full force and effect, and the Monthly Rental shall be proportionately reduced while such repairs are being made as hereinabove provided. Nothing in the foregoing to the contrary withstanding, if the Premises or said building is damaged or destroyed at any time during the term hereof to an extent of more than twenty-five percent (25%) of the then replacement cost (excluding foundations) as a result of a casualty not insured against, Landlord may within thirty (30) days following the date of such destruction terminate this Lease upon written notice to Tenant. If Landlord does not elect to terminate because of said uninsured casualty, Landlord shall promptly rebuild and repair the Premises and/or the building and the Monthly Rental shall be proportionately reduced while such repairs are being made as hereinabove provided. If Landlord elects to terminate this Lease, all rentals shall be prorated between Landlord and Tenant as of the date of such destruction. In respect to any partial or total destruction (including any destruction necessary in order to make repairs required by any such declaration of any authorized public authority) which Landlord is obligated to repair or may elect to repair under the terms of this Section, Tenant waives any statutory right it may have to cancel this Lease as a result of such destruction. 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, which consent shall not be unreasonably withheld. For purposes of this Lease, an assignment shall be deemed to include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Tenant, taking all transfers into account on a cumulative basis. Landlord may withhold its consent to an assignment or sublease to a proposed assignee or sublessee, 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 subiessee'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 sublessee 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 sublessee is morally and financially responsible. 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. The proposed assignee shall simultaneously provide to Landlord an estoppel certificate in the form described in Exhibit "C" hereafter. Consent by Landlord to one assignment, subletting, occupation or use by another person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any assignment or subletting without the prior written consent of Landlord shall be void, shall constitute a material breach of this Lease, and shall, at the option of Landlord, terminate this Lease. Neither this Lease nor any interest therein shall be assignable as to the interest of Tenant by operation of law. 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 IAV #21100 vl -11- 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 DEFAULT 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 rental 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 failure to perform any of Tenants agreements or obligations hereunder (exclusive of a default in the payment of money) where such default shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant which notice shall be deemed to be the statutory notice so long as such notice complies with statutory requirements; (c) the vacation or abandonment of the Premises by Tenant; (d) the making by Tenant of a general assignment for the benefit of creditors; (e) the filing by Tenant of a voluntary petition in bankruptcy or the adjudication of Tenant as a bankrupt; (f) the appointment of a receiver to take possession of all or substantially all the assets of Tenant located at the Premises or of Tenants leasehold interest in the Premises; (g) the filing by any creditor of Tenant of an involuntary petition in bankruptcy which is not dismissed within sixty (60) days after filing; or (h) the attachment, execution or other judicial seizure of all or substantially all of the assets of Tenant or Tenant's leasehold where such an attachment, execution or seizure is not discharged within sixty (60) days. Any repetitive failure by Tenant to perform its agreements and obligations hereunder, though intermittently cured, shall be deemed an incurable default. Two (2) breaches of the same covenant within a sixty (60) day period, a notice having been given pursuant to (a) or (b) above for the first breach, or three (3) of the same or different breaches at any time during the term of this Lease for which notices pursuant to (a) or (b) above were given for the first two (2) breaches shall conclusively be deemed to be an incurable repetitive failure by Tenant to perform its obligations hereunder. In the event of any such default or breach by Tenant, Landlord may at any time thereafter, without further notice or demand, rectify or cure such default, and any sums expended by Landlord for such purposes shall be paid by Tenant to Landlord upon demand and as additional rental hereunder. In the event of any such default or breach by Tenant, Landlord shall have the right (i) to continue the Lease in full force and effect and enforce all of its rights and remedies under this Lease, including the right to recover the rental as it becomes due under this Lease, or (ii) Landlord shall have the right at any time thereafter to elect to terminate the Lease and Tenants right to possession thereunder. Upon such termination, Landlord shall have the right to recover from Tenant: (i) The worth at the time of award of the unpaid rental which had been earned at the time of termination; IRV #21100 v) -12- (ii) The worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant proves could have been reasonably avoided; (iii) The worth at the time of award of the amount by which the unpaid rental for the balance of the term after the time of award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided; and (iv) Any other amount necessary to compensate the Landlord for all the detriment proximately caused by Tenants failure to perform its obligations under the lease or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in subparagraphs (i) and (ii) above shall be computed by allowing interest at three percent (3%) over the prime rate then being charged by Bank of America, N.A. but in no event greater than the maximum rate permitted by law. The worth at the time of award of the amount referred to in subparagraph (iii) above shall be 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 (10/o), but in no event greater than ten percent (10%). As used herein `rental" shall include the Monthly Rental, percentage rental equal to the average percentage rental paid or payable by Tenant for the last twelve (12) months or such lesser period as Tenant has been open for business, other sums payable hereunder which are designated `rental" or "additional rental" and any other sums payable hereunder on a regular basis such as reimbursement for real estate taxes. Such efforts as Landlord may make to mitigate the damages caused by Tenants breach of this Lease shall not constitute a waiver of Landlord's right to recover damages against Tenant hereunder, nor shall anything herein contained affect Landlord's right to indemnification against Tenant for any liability arising prior to the termination of this Lease for personal injuries or property damage, and Tenant hereby agrees to indemnify and hold Landlord harmless from any such injuries and damages, including all attorney's fees and costs incurred by Landlord in defending any action brought against Landlord for any recovery thereof, and in enforcing the terms and provisions of this indemnification against Tenant. 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. my x2uoo vI -13- 10.3 Landlord's Default. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant to Landlord and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have theretofore been furnished to Tenant in writing, specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for performance then Landlord shall not be deemed in default if Landlord commences performance within a (30) day period and thereafter diligently prosecutes the same to completion. In no event shall Tenant have the right to terminate this Lease as a result of Landlord's default and Tenant's remedies shall be limited to damages and/or an injunction. 11.0 CONDEMNATION. In the event a condemnation or a transfer in lieu thereof results in a taking of any portion of the Premises, Landlord may, or in the event a condemnation or a transfer in lieu thereof results in a taking of twenty-five percent (25%) or more of the Premises, Tenant may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Lease. Tenant shall not be entitled to share in any portion of the award and Tenant hereby expressly waives any right or claim to any part thereof. Tenant shall, however, have the right to claim and recover, only from the condemning authority (but not from Landlord), any amounts necessary to reimburse Tenant for the cost of removing stock and fixtures. If this Lease is not terminated as above provided, Landlord shall use a portion of the condemnation award to restore the Premises. 12.0 MISCELLANEOUS. 12.1 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 or for the purpose of maintaining 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 and without any liability to Tenant for any loss of occupation or quiet enjoyment of the Premises thereby occasioned. Tenant shall permit Landlord, at any time within six (6) months prior to the expiration of this Lease, to place upon the Premises any usual or ordinary "For Lease" signs, and during such six (6) month period Landlord or his agents may, during normal business hours, enter upon said Premises and exhibit same to prospective tenants. 12.2 Estopoel 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 "C" 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. Iava21100vi -14- 12.3 Jurisdiction and Venue. 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 fiuther 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. 12.4 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 hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereof. 12.5 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. 12.6 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. 12.7 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! 12.8 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 venturer with Tenant, and that the provisions of this Lease and the agreements relating to rent payable hereunder are included solely for the purpose of providing a method whereby rental payments are to be measured and ascertained. 12.9 Nondiscrimination. Tenant herein covenants by and for itself, its heirs, executors, administrators and assigns and all persons claiming under or through it, and this Lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, sex, marital status, color, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises herein leased, nor shall the Tenant itself, or IRV #21100 vl -15- any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub -lessees, subtenants or vendees in the Premises. 12.10 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, to the City of Palm Springs, P.O. Box 2743, Palm Springs, California, 92263, Attn: City Manager, and if to Tenant, 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. 12.11 Waiv . 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. 12.12 Termination of Previous Agreement. Upon full execution of this agreement, the previous lease and any amendments hereto are hereby terminated and no longer enforceable. 12.13 Exhibits and Addenda. The Exhibits and Addenda attached to this Lease are made a part hereof as if fully set forth herein. In the event of a conflict between the terms and provisions of an Addendum and the terms and provisions of this Lease, the terms and provisions of the Addenda shall prevail. [SIGNATURES ON NEXT PAGE] IRV #21100.1 -16- IN WITNESS WHEREOF, the parties have duly executed this Lease together with the herein referred to Exhibits which are attached hereto, on the day and year first above written in Palm Springs, California. ATTEST: CITY OF PALM SPRINGS, a California Charter City By: City Clerk City Manager APPROVED BY CrTYCDII;�ICIE REVIEWED APPROVED sy: Cit Attorney "TENANT" _Lth< fl'o at7 k DRAFTED AND REVEWED IRV #21100 vl -17- EXHIBIT "A" LEGAL DESCRIPTION OF THE PREMISES The Southerly 40 feet of lot 5; lot 6; the northerly 42 feet of lot 7; all in book 19 of Palm Springs, as shown by map in file in book 9, page 432 of maps, San Diego County Records. Also known as 211 South Palm Canyon Drive, "Village Green". Area #1 on attached map. arV x21 ioo vi EXHIBIT `B-1" PLOT PLAN OF PREMISES R. Travers SoLth I tONONETE OLOCX WA OOutsid�ev4oatino Araa` I { (Soil thj 1(), 800 a fL` • 221 h cras anOlosure � �� Hi. • 40 �\ 660 VSA O j - a2• rr i :Larry E. Smith / 21 GSt I � � I 7 1 I I Q O I e � I i m 1 Fountain I 1 Q LAWN 1 f LAWN N I211 SEG. IS T E R96 S. B. 0. am. MAP TMENT IRV #21100 vi PALM CANYON DRIVE (.APPROXIMATE LOCATIONS) r 12-a-2 ENGINEERING DIVISION EXHIBIT "C" ESTOPPEL CERTIFICATE Tenant: Arenas Associates dba Palm Springs Fudge & Chocolates Landlord: CITY OF PALM SPRINGS, a Charter City Date of Lease: Premises: "Village Green", 211 South Palm Canyon Drive in Palm Springs To: Arenas Associates 211 South Palm Canyon Drive Palm Springs, CA 92262 The undersigned hereby certifies as follows: 1. The undersigned is the tenant (" Tenant') under the abovan foamed lease ("Lease") covering the above -referenced prises ("Premises). 2. The Lease constitutes the entire agreement between landlord and Tenant with respect to the Premises and the Lease has not been modified, dnangad, altered or amended in any respect except as set forth above. 3. The terra of the Lease commenced on , 2013 and, including any presently exercised option or renewal term, will expire on 2018. Tenant has accepted possession of the Premises and is the actual occupant in possession thereof and has not sublet, assigned or hypothecated its leasehold interest. All improvements to be constructed on the Premises by Landlord have been completer, and accepted byTmantand myteriantconstruction allowances have been paid in fill. 4. As of this date, to the best ofTem fs knowledge, there exists no breach or default, nor state of fads which, with notice, the passage oftime, or both, would result in a breach or default on the part of either Tenant or Landlord. To the best of Tenant's knowledge, no claim, controversy, dispute, quarrel or disagreement exists between Tenant and Landlord 5. Tenant is currently obligated to pay Monthly Rent in installments of $1,707.53 per month, and such monthly installments have been paid not more than one month in advance. To the best of Tenaoi's knowledge, no other rent has been paid in advance and Tenant has no claim or defense against Landlord under the Lease and is asserting no offsets or credits against either the rent or Landlord. Tenant has no claim against Landlord for any security or other deposits except $1,100.00 which was paid pursuant to the Lease. 6. Tenant has no option or preferential right to lease or occupy additional space within the Property of which the Premises are a part. Tenant has no option or preferential right to purchase all of any part of the Premises nor any right or interest with respect to the Pranises other than as Tenant under the Lease Tenanthas no ugbttorahew or extend the term ofthe Lease except as set forth in the Lease. ury a211ao.n 8. There has not been filed by or against Tenant a petition in bankruptcy, vohultary or otherwise, any assigrmrant for the befit of aeditol5, any petition seddng reorganization or anangement under the banknptcy laws of the United States, or any state t omf or any other action brought under said bankruptcy laws with respect to Tenant 9. All insurance which Tenant is required to maintain under the Lzase has been obtavred by Tenant and is in full force and effect and all premiums with respect thaeto have been paid. 10. Tenant shall keep all window displays inaclean and ordedy fashion and be allowed to offer and display markrandisewhich is suitable fora Fudge and Chocolates Store. Dated this day of , 20 rxv m1100 yr ii EXHIBIT "D" RULES AND REGULATIONS 1. All loading and unloading of goods and other related equipment, as well as the parking and storage of related items shall be done only at the times, in the areas and through the entrances reasonably designated for such purposes by City. 2. All loading and unloading of passengers shall be done only at the times, in the areas and through the entrances reasonably designated for such purposes by City. 3. The Tenant is responsible for maintaining the security of guests and students at the Premises through its own efforts. 4. All of Tenant's refuse and rubbish shall be removed on a regular basis at Tenant's sole cost and expense. Tenant shall not bum any trash or garbage of any kind in, about or upon the Premises. Tenant shall not place any rubbish or other matter outside any building within the Facility, except in such containers as are authorized from time to time by City. 5. No radio or television or other similar device audible outside the facility shall be installed without obtaining in each instance the written consent of City. No aerial shall be erected on the roof, exterior walls or grounds of the Premises without first obtaining in each instance the written consent of City which consent shall not be unreasonably withheld or delayed. Any aerial so installed without such written consent shall be subject to removal without notice at any time. 6. No loudspeakers, televisions, phonographs, radios or other devices shall be used in a manner so as to be heard or seen outside of the Premises without first obtaining in each instance written consent of City. 7. No sirens, outside paging or any type of signalization will be permitted, except approved alarm systems. 8. The outside sidewalks, parking lots and loading areas immediately adjoining the premises shall be kept clean and free from dirt and rubbish by Tenant to the reasonable satisfaction of City, and Tenant shall not place or permit any obstructions or merchandise in such areas, except to the extent specifically permitted by the provisions of Tenant's lease. 9. Tenant shall not use, and shall not allow anyone else to use, the Facility as a habitation. Such prohibition shall include, without limitation, sleeping, eating or bathing. 10. No vehicle servicing or fueling shall be allowed on the Premises, including the changing of wheels or tires, pumping fuel, emptying liquid waste tanks, or servicing any engine or motor. IRV #21100 v1 iii AMENDMENT NO. 1 TO AMENDED AND RESTATED LEASE (ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES) This Amendment No. 1 to the Amended and Restated Lease Agreement ("Amendment") is made and entered into this tr)l' day of bUto�6W _, 2018, by and between the City of Palm Springs ("City") and Arenas Associates dba Palm Springs Fudge & Chocolates, an S-Corporation ("Tenant'), for the lease of 211 South Palm Canyon Drive located within the "Village Green" in Palm Springs. California RECITALS WHEREAS, the City and Tenant previously entered into an amended and restated lease agreement ("Lease Agreement') on November 18, 2013; and WHEREAS. the Lease Agreement was for an initial period of five years, beginning November 18, 2013 and ending November 17, 2018, with the option of one additional five-year term subject to mutual agreement on adjustment of minimum monthly rent to the fair market value for the first year of the extended term; and WHEREAS, the City and Tenant desire to renew the Lease Agreement for the five-year extension option term at the mutually agreed value. NOW, THEREFORE, the City and Tenant do hereby mutually agree as follows: AGREEMENT The term of the Facility Use Agreement shall be extended for five years from November 18, 2018 to November 17, 2023. 2. Starting Monthly rent effective November 18, 2018 shall be adjusted to $1,903.53. Replace Section 1.3 in its entirety with the following: 1.3 Rental. Rental shall be $1,903.53 per month, with Tenant to pay all operational utility and maintenance cost necessary to operate the Premises in accordance with the maintenance standards of Section 5.3 and other provisions of the Lease. Upon each anniversary date of the Commencement Date, monthly rental shall be adjusted (i) in an amount equal to the increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics (1982-1984 = 100) [the "CPI'] for "All Items -All Urban Consumers", for the Los Angeles -Long Beach -Anaheim Metropolitan Statistical Area, during the preceding twelve (12) month period; or (ii) three percent (3%), whichever is greater. The base month for increases under this Section shall be the most DUPLICATE ORIGINAL recently measured twelve (I2) month period prior to the commencement of each annual anniversary of the Commencement Date. 4. Replace Section 12.9 in its entirety with the following: 12.9 Nondiscrimination. In connection with its performance under this Agreement, Tenant 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"). Tenant 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, Tenant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Tenant 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; leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the Premises herein leased; and further, that Tenant 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. All other terms and conditions of the Lease Agreement shall remain in full force and effect. (SIGNATURES ON FOLLOWING PAGE) IN WITNESS THEREFORE, these parties have executed this Amendment on the day and year first set forth above. CITY OF PALM SPRINGS ' Date: �7 David H. Ready, City M r ATTEST: Anthony J. mejia, City APPROVED AS TO Edwazd Z. Kotkin, Ci Atto e ARENAS ASSOCIATES dba PALM SPRINGS FUDGE & CHOCOLATES APPROWTBYCRY COUNCIL. 5. to Ito ►3 A5av LU Yvlo6rok Date: �I 1 OS IZoItQ Lutfa MobWrak, Owner