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HomeMy WebLinkAboutA9469 - LGBTQ Community Center of the Desert (Community Food Bank Lease)CONTRACT ABSTRACT Contract/Amendment Name of Contract: Company Name: Company Contact: Email: Summary of Services: Contract Price: Contract Term: Public Integrity/ Business Disclosure Forms: Contract Administration Lead Department: Contract Administrator/ Ext: Contract Approvals Council/City Manager Approval Date: Agreement Number: Amendment Number: Contract Compliance Exhibits: Insurance: Routed By: Bonds: Business License: Sole Source Co-Op CoOp Agmt #: Sole Source Documents: CoOp Name: CoOp Pricing: By: Submitted on: Contract Abstract Form Rev 8.16.23 Authorized Signers: Name, Email (Corporations require 2 signatures) Accelerator Right of Entry LGBT Community Center of the Desert Mike Thompson, CEO mike@thecentercv.org Right of entry starting Aug 12, 2024 prior to lease starting Sept 1, 2024 N/A Aug 12 to Aug 31, 2024 NA Mike Thompson, CEO Airport Wayne Olson No N/A Yes Department N/A No Related to A9469 1 CITY OF PALM SPRINGS RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement (“Agreement”) is entered in this 12th day of August, 2024 (“Effective Date”) by the CITY OF PALM SPRINGS, a charter city and municipal corporation (referred to herein as “City” or “GRANTOR”) and LGTBQ Community Center of the Desert, a California nonprofit corporation (referred to herein as "GRANTEE"). GRANTOR and GRANTEE are sometimes individually referred to as “Party” and collectively as “Parties.” RECITALS A. GRANTOR is the owner of certain real property located in Riverside County, California as described in Exhibit “A” attached hereto and incorporated herein (the “Property”). B. GRANTEE desires to obtain GRANTOR’s permission to enter onto the Property, on a temporary basis, for the purpose of moving in equipment fixtures and furnishings to prepare for opening on September 1, 2024 (the “Project”). The Project is further described in Exhibit “B” attached hereto and incorporated herein. C. The Parties wish to enter into this Agreement whereby GRANTOR will allow GRANTEE to enter onto the Property, on a temporary basis, for the above stated purpose. NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: AGREEMENT 1. Right of Entry. GRANTOR hereby grants to GRANTEE and its agents, employees and contractors the temporary non-exclusive right to enter onto the Property solely for the Project; provided, however, that GRANTEE’s use of the Property permitted hereunder shall not interfere with the reasonable use and enjoyment thereof by GRANTOR or any tenants, occupants or persons claiming through or under GRANTOR; and provided further that all persons who enter upon the Property pursuant to this Agreement do so at their own risk and shall comply with any and all instructions and directions of GRANTOR. 2. Term. The term of this Agreement shall commence on the Effective Date and automatically terminate on September 1, 2024, unless terminated earlier. 3. Indemnification. To the fullest extent permitted by law, GRANTEE, its contractors, consultants, subcontractors, subconsultants, materialmen, suppliers, workers, successors, and assigns (collectively, the “Grantee Parties”) shall, and hereby does, agree to indemnify, defend, and hold harmless GRANTOR; and its elected and appointed officials, officers, directors, employees, agents, volunteers, successors, representatives, and assigns (collectively, the “Grantor Parties”), from and against all damages, claims, liabilities, settlements, penalties, fines, costs, expenses, losses, or attorney and consultant fees and costs (collectively “Damages”) incurred by GRANTOR to the extent that the same arise or result from or are caused by the acts 2 or omissions of the Grantee Parties in connection with their use of this Property or the Project and/or in connection with the exercise of any other rights granted by this Agreement with respect to the Property or any part thereof; provided, however, that GRANTEE shall not be obligated to indemnify, defend, or hold harmless the Grantor Parties from and against any Damages to the extent that such Damages are caused by the sole negligence or willful misconduct of the Grantor Parties. Grantee’s indemnification obligation herein shall include, without limitation, the following: 1) any and all claims under workers’ compensation acts and other employee benefit acts with respect to GRANTEE’s employees or GRANTEE’s consultant’s employees arising out of the Project, 2) liability for damages for death or bodily injury to person, (3) injury to, loss or theft of property; and 3) any failure or alleged failure to comply with any provision of law. 4. Authority to Enter Agreement. GRANTOR warrants that it is the owner of the Property and that the undersigned is authorized to grant GRANTEE permission to enter onto the Property for the use specified in this Agreement. GRANTEE hereby warrants that the undersigned is authorized to execute this Agreement on behalf of GRANTEE. 5. Liens. GRANTEE shall not permit to be placed against the Property, or any part thereof, any design professionals’, mechanics’, materialmen’s contractors’ or subcontractors’ liens with regard to GRANTEE’s actions upon the Property. GRANTEE agrees to hold GRANTOR harmless for any loss or expense, including reasonable attorneys’ fees and costs, arising from any such liens which might be filed against the Property. 6. Compliance with Laws/Permits. GRANTEE shall, in all activities undertaken pursuant to this Agreement, comply and cause its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. Without limiting the generality of the foregoing, GRANTEE, at its sole cost and expense, shall obtain any and all permits which may be required by any law, regulation or ordinance for any activities GRANTEE desires to conduct or have conducted pursuant to this Agreement. 7. Inspection. GRANTOR and its representatives, employees, agents or independent contractors may enter and inspect the Property or any portion thereof or any improvements thereon at any time and from time to time at reasonable times to verify GRANTEE’s compliance with the terms and conditions of this Agreement. 8. Not Real Property Interest. It is expressly understood that this Agreement is not exclusive and does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the Property to GRANTEE. 9. Revocable Licenses and Termination. Notwithstanding any sums expended by GRANTEE in furtherance of this Agreement, the right of entry granted herein is revocable and may be terminated by GRANTOR in accordance with the terms of this Agreement. This Agreement may be terminated at any time by either party upon five (5) business days’ notice in writing to be served upon the other party. In cases of an emergency or a breach of this Agreement, this Agreement may be terminated immediately. 3 10. Restoration of the Property. Upon the termination or revocation of this Agreement, GRANTEE shall, at its own cost and expense, restore the Property to the same condition in which it was prior to GRANTEE’s entry. In case GRANTEE shall fail to restore the Property to its prior condition within ten (10) business days after the effective date of the termination, the GRANTOR may proceed with such work at the expense of GRANTEE. 11. Insurance. GRANTEE shall comply with the insurance provisions attached hereto as Exhibit “C” and incorporated herein. 12. Entire Agreement. This Agreement is the result of negotiations between the Parties. This Agreement is intended by the Parties as a full and final expression of their understanding with respect to the matters contained in this Agreement. 13. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 14. Attorneys’ Fees, Governing Law, Venue. In the event of a dispute between the Parties with respect to the terms or conditions of this Agreement, the prevailing Party shall be entitled to collect from the other its reasonable attorneys’ fees as established by the judge or arbitrator presiding over such dispute. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 15. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 4 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND LGTBQ COMMUNITY CENTER OF THE DESERT IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _______________________________________ By: _________________________________________ Mike Thompson, CEO Matt Wigglesworth, Finance & Operations Director Date: Date: CITY OF PALM SPRINGS: A9469 APPROVED AS TO FORM: ATTEST: By: ___________________________ By: _______________________________ City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 8/8/2024 8/8/2024 8/8/2024 5 EXHIBIT A DESCRIPTION/ DEPICTION OF PROPERTY A subportion of 15.76 acres m/l in por lots 1, 2 & 3 MB 014/652 SD PALM VALLEY COLONY LANDS commonly referred to as Building 12 – Accelerator Campus 6 EXHIBIT B DESCRIPTION OF ACTIVITY TO BE CONDUCTED ON PROPERTY Preparation for move-in on September 1, 2024 (#A9469) 7 EXHIBIT C INSURANCE PROVISIONS PROVIDED UNDER LEASE AMENDMENT #A9469 AND LEASE CONTRACT DATED FEBRUARY 8, 2024 Certificate Of Completion Envelope Id: 08D92F197E1B429EA846DD6408A07801 Status: Completed Subject: Complete with Docusign: Palm Springs - Right of Entry Agreement - Food Bank-c1 (003).docx, ROE ... Source Envelope: Document Pages: 47 Signatures: 5 Envelope Originator: Certificate Pages: 6 Initials: 0 Brent Rasi AutoNav: Disabled EnvelopeId Stamping: Disabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 brent.rasi@palmspringsca.gov IP Address: 67.52.168.215 Record Tracking Status: Original 8/8/2024 9:12:02 AM Holder: Brent Rasi brent.rasi@palmspringsca.gov Location: DocuSign Security Appliance Status: Connected Pool: StateLocal Storage Appliance Status: Connected Pool: City of Palm Springs Location: DocuSign Signer Events Signature Timestamp Mike Thompson mike@thecentercv.org Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 72.132.233.217 Sent: 8/8/2024 9:12:51 AM Resent: 8/8/2024 9:38:07 AM Viewed: 8/8/2024 9:40:27 AM Signed: 8/8/2024 9:41:22 AM Electronic Record and Signature Disclosure: Accepted: 8/8/2024 9:40:27 AM ID: c73df3cc-114c-407c-bdc1-6d9380641cde Matt Wigglesworth matt@thecentercv.org Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 72.132.233.217 Sent: 8/8/2024 9:41:26 AM Viewed: 8/8/2024 10:21:39 AM Signed: 8/8/2024 10:23:18 AM Electronic Record and Signature Disclosure: Accepted: 8/8/2024 10:21:38 AM ID: a4b6d64a-faf3-42fb-aa5b-4f2e68fe7eaa Jeffrey S. Ballinger jeff.ballinger@bbklaw.com City Attorney BEST BEST & KRIEGER LLP Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 74.116.243.2 Sent: 8/8/2024 10:23:21 AM Viewed: 8/8/2024 1:00:34 PM Signed: 8/8/2024 1:00:47 PM Electronic Record and Signature Disclosure: Accepted: 8/8/2024 1:00:34 PM ID: fc8bebae-4298-4fb2-befd-46e6185fc617 Scott Stiles scott.stiles@palmspringsca.gov City Manager City of Palm Springs Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 104.28.123.99 Signed using mobile Sent: 8/8/2024 1:00:50 PM Viewed: 8/8/2024 2:35:44 PM Signed: 8/8/2024 2:37:23 PM Electronic Record and Signature Disclosure: Signer Events Signature Timestamp Accepted: 8/8/2024 2:35:43 PM ID: d43284fd-3ef6-4bad-b8a9-dc2beaa8504f Brenda Pree brenda.pree@palmspringsca.gov City Clerk Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 67.52.168.215 Sent: 8/8/2024 2:37:27 PM Viewed: 8/8/2024 2:51:24 PM Signed: 8/8/2024 2:51:37 PM Electronic Record and Signature Disclosure: Accepted: 9/7/2022 8:21:01 AM ID: 9be06ae2-09de-4f55-b669-f1a3d981eee3 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Brenda Pree Brenda.Pree@palmspringsca.gov Brent Rasi brent.rasi@palmspringsca.gov Evelyn Beltran evelyn.beltran@palmspringsca.gov Signing Group: City Clerk Security Level: Email, Account Authentication (None) Sent: 8/8/2024 2:51:40 PM Resent: 8/8/2024 2:51:46 PM Viewed: 8/8/2024 2:54:12 PM Electronic Record and Signature Disclosure: Accepted: 9/7/2022 8:21:01 AM ID: 9be06ae2-09de-4f55-b669-f1a3d981eee3 Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 8/8/2024 9:12:51 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Envelope Updated Security Checked 8/8/2024 9:38:06 AM Certified Delivered Security Checked 8/8/2024 2:51:24 PM Signing Complete Security Checked 8/8/2024 2:51:37 PM Completed Security Checked 8/8/2024 2:51:41 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Palm Springs (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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CONTRACT ABSTRACT Contract/Amendment Name of Contract: Company Name: Company Contact: Email: Summary of Services: Contract Price: Contract Term: Public Integrity/ Business Disclosure Forms: Contract Administration Lead Department: Contract Administrator/ Ext: Contract Approvals Council/City Manager Approval Date: Agreement Number: Amendment Number: Contract Compliance Exhibits: Insurance: Routed By: Bonds: Business License: Sole Source Co-Op CoOp Agmt #: Sole Source Documents: CoOp Name: CoOp Pricing: By: Submitted on: Contract Abstract Form Rev 8.16.23 Authorized Signers: Name, Email (Corporations require 2 signatures) Airport Lease for the Community Food Bank LGBT Community Center of the Desert Mike Thompson, CEO Mike@thecentercv.org First Amendment to A9469, Food Bank Lease for the Airport at $1500 (Revenue) abated until 10/31/25 9/1/2024 to 08/31/2026 Mike Thompson, CEO Airport Flinn Fagg July 25, 2024 Item 1.CC A9469 1 No Yes - Department No No August 5, 2024 Brent Rasi -1- AMENDMENT NO. 1 TO AIRPORT LEASE AGREEMENT WITH LGBTQ COMMUNITY CENTER OF THE DESERT This Amendment No. 1 to the Airport Lease Agreement (“Amendment”) for is made and entered into as of July 25, 2024 (“Effective Date”) by and between the City of Palm Springs, a charter city and municipal corporation (“City”) and LGTBQ Community Center of the Desert, a California nonprofit corporation (“Tenant”). City and Tenant are sometimes referred to herein individually as a “Party” and collectively as “Parties.” RECITALS A. WHEREAS, the City and the Tenant have entered into an agreement, dated , for the purpose of leasing property from the City in order to operate a community food bank (the “Original Agreement”). B. WHEREAS, the Parties now desire to amend the Original Agreement in order to alter the term of the Original Agreement, alter the Leased Premises, and provide for an abatement of rent in return for improvements made on the Leased Premises. NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in the this Amendment No. 1 and the Original Agreement, the Parties mutually agree as follows: AGREEMENT 1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference. 2. Replacement of Exhibit “A” of the Original Agreement. Exhibit “A” of the Original Agreement shall hereby be replaced with Exhibit “A-1” attached hereto and incorporated herein by this reference. From the Effective Date of this Amendment, all references to Exhibit “A” in the Original Agreement shall refer to Exhibit “A-1”. 3. Amendment to Section 2.2 of the Original Agreement. Section 2.2 of the Original Agreement shall be amended in its entirety to read as follows: “2.2 Acceptance of Leased Premises. With the exception of removing the lettering on the outside of the Leased Premises, the maintenance of the air conditioning system, and the removal of specified electrical components within the Lease Premises, Tenant hereby accepts the Leased Premises in the condition existing as of the date hereof. Tenant hereby agrees that the Leased Premises are in a good and tenantable condition and acknowledges that it has inspected the Leased Premises and common areas of the Airport to its satisfaction and acknowledges that City is not obligated to make any repairs or alterations to the Leased Premises or common areas.” -2- 4. Amendment to Section 3.1 of the Original Agreement. Section 3.1 of the Original Agreement shall be amended in its entirety to read as follows: “3.1 Original Term. The original term of this Agreement shall be for two (2) years, commencing on September 1, 2024 (the “Commencement Date”) and ending at on August 31, 2026 (“Original Term”), unless sooner terminated in accordance with this Agreement.” 5. Addition of Section 4.1(a) to the Original Agreement. Section 4.1(a) shall be added to the Original Agreement to read as follows: “(a) Rent Abatement. In return for previous expenses spent by Tenant related to the original Leased Premises, City agrees to abate the monthly rent for the period of September 1, 2024 through October 31, 2025 (the “Abatement Period”).” 6. Full Force. Except as amended by this Amendment No. 1, all provisions of the Master Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 1. 7. Electronic Transmission. A manually signed copy of this Amendment No. 1 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 1 for all purposes. This Amendment No. 1 may be signed using an electronic signature. 8. Counterparts. This Amendment No. 1 may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON FOLLOWING PAGE] -3- SIGNATURE PAGE FOR AMENDMENT NO. 1 TO THE AIRPORT LEASE AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND LGBTQ COMMUNITY CENTER OF THE DESERT IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. TENANT: By: _____________________________ By: _____________________________ Signature Mike Thompson, Chief Executive Officer CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: July 25, 2024 Item No. Item 1.CC Agreement No. A9469 APPROVED AS TO FORM: ATTEST: By: _____________________________ By: _____________________________ City Attorney City Clerk APPROVED: By: _____________________________ Scott Stiles City Manager 8/6/2024 8/6/2024 -4- EXHIBIT “A-1” DESCRIPTION/DEPICTION OF LEASED PREMISES [ATTACHED] CITY OF PALM SPRINGS AIRPORT LEASE This Airport Lease Agreement ("Agreement") is made and entered into this =day of bru u_, 20ZZJ by and between the City of Palm Springs, a charter city and municipal corporation ("City") and the LGBTQ Community Center of the Desert, a California nonprofit corporation ("Tenant"). City and Tenant may be individually referred to as "Party" or collectively as the "Parties". RECITALS A. The City is the owner and operator of the Palm Springs International Airport ("Airport") located at 3400 E Tahquitz Canyon Way, Palm Springs, CA 92262. B. Tenant desires to lease property from the City in order to operate a community food bank. NOW THEREFORE, for and in consideration of the mutual representations, warranties, covenants, obligations, privileges, conditions, and agreements set forth in this Agreement, the Parties hereby agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The recitals above are true and correct and are hereby incorporated herein by this reference. 2. LEASED PREMISES. 2.1 Lease. City hereby leases to Tenant and Tenant leases from City, certain real property located within the City of Palm Springs, County of Riverside, California, as more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference. This leased property, as defined herein, is leased to Tenant and referred to in this Agreement as the "Leased Premises". 2.2 Acceptance of Leased Premises. Tenant hereby accepts the Leased Premises in the condition existing as of the date hereof. Tenant hereby agrees that the Leased Premises are in a good and tenantable condition and acknowledges that it has inspected the Leased Premises and common areas of the Airport to its satisfaction and acknowledges that City is not obligated to make any repairs or alterations to the Leased Premises or common areas. 2.3 Reservations to City. Tenant further accepts the Leased Premises subject to any and all existing easements and encumbrances. City reserves the right without obligation to install, lay, construct, maintain and repair utilities and appurtenances necessary or convenient in connection therewith in, over, upon, through, across, under and along the Leased Premises or any part thereof, and to enter the Leased Premises for any and all such purposes. City also reserves the right to grant franchises, easements, rights of -way and permits in, over, upon, through, across, under and along any and all portions of the Leased Premises. No right reserved by City in this clause shall be so exercised as to interfere unreasonably with Tenant's operations 1- hereunder, and the rights granted to third parties by reason of this clause shall contain provisions that the surface of the land shall be restored as nearly as practicable to its condition prior to the construction upon completion of any construction. 3. TERM. 3.1 Original Term. The original term of this Agreement shall be for two (2) years, commencing on March 1, 2024 (the "Commencement Date") and ending at on February 28, 2026 Original Term"), unless sooner terminated in accordance with this Agreement. 3.2 Possession. The Tenant is granted full and complete access to the Leased Premises as of the Commencement Date of this Agreement and, so long as Tenant is not in default hereunder, the right to its possession for the duration of this Agreement. 3.3 Expiration or Termination of Term. Tenant shall, at the expiration of the term of this Agreement, or upon its earlier termination, return the Leased Premises in conformance with Section 15. Prior to expiration of termination of this Agreement, Tenant shall allow City to inspect the Leased Premises and complete a walk-through to verify the condition of the Leased Premises. 3.4 Holding Over. If Tenant shall hold over the Leased Premises after the expiration of the term hereof with the consent of City, either express or implied, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations hereof; terminable on thirty (30) days written notice given at any time by either party; provided, however, that nothing herein contained shall be construed to give Tenant any rights to so hold over and to continue in possession of the Leased Premises after the expiration of the term hereof. 4. RENTS, FEES, AND OTHER CHARGES. 4.1 Monthly Rent. The monthly rental for the use and occupancy of the Leased Premises for the Original Term shall be One Thousand Five Hundred dollars ($1,500) per month. 4.2 Payments. Payment of rents, fees, and other charges shall be made promptly without notice or demand, in legal tender of the United States of America. a) Payment of rent shall be made by Tenant to City monthly in advance on or before the first (1st) day of each month. The rent for any partial month shall be prorated. b) Payment of fees and other charges shall be made by Tenant to City monthly on or before the fifteenth (15th) day of each month for the previous month. c) Payments of rents, fees, and other charges shall be made by check or money order, payable to City. Payments shall be delivered or mailed to The City of Pahn Springs, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262, attention: Finance Department or to such other location as may be directed in writing by City. Payments shall be made without any abatement, deductions, reductions, offsets, or counterclaims of any kind. Any 50a portion of rent not received on or before fifteen (15) days past the due date, shall be deemed a material default of the terms of this Agreement and a breach. d) If any check is returned by the bank for any reason, Tenant shall pay a fifty dollar ($50.00) returned check charge, in addition to applicable late fees, until cash, draft or other acceptable form of payment (as specified by the City) is received by the City. In the event of a returned check, the City may demand that payment of the returned check and/or all future payments be made by certified check, cashier's check, money order or cash. 4.3 Late Charges. A late charge equal to ten percent (10%) per month on the unpaid balance for each month the rent is late shall be automatically added to any fees or other charges not received by City by the close of business five (5) calendar days after due and owing. rent not received on or before fifteen (15) days past the due date shall be deemed a default of this Agreement. In addition to late charges, City shall be entitled to interest at the State of California judgment rate plus all costs and expenses incurred by City to collect (or attempt to collect) amounts past due, including without limitation, attorney and court fees, costs, and expenses. a) At the option of the City, rents tendered to the City subsequent to default may be rejected by the City, or accepted by the City, with the appropriate late fees. The City, at its sole discretion, may reject past due payments and consider the lease in breach. Acceptance of any such late charge by City shall in no event constitute a waiver of City's default with respect to such overdue amount, nor prevent City from exercising any of the other rights and remedies granted hereunder, nor be deemed a waiver of any other existing breach by the Tenant. 5. USE OF THE LEASED PREMISES AND CONDUCT OF TENANT. 5.1 Use of the Leased Premises. a) Tenant hereby acknowledges that the principal use of the Airport consists of the operation of a public airport and that all other operations and businesses which are now or hereafter permitted by City, including the use hereunder, must be at all times be compatible with such principal use, as City shall, in its sole discretion, determine. b) The primary use of the Leased Premises permitted under this Agreement shall be a community food bank. Tenant shall, continuously and uninterruptedly during the term of this Agreement, conduct its activity, as permitted herein, upon the Leased Premises unless prevented from so doing by strikes, fire, casualty or other causes beyond Tenant's control, except during reasonable periods for repairing, cleaning and decorating the Leased Premises. c) Tenant shall, at Tenant's own cost and expense, obtain and maintain all licenses, permits, certificates or other authorizations of any governmental authority having jurisdiction thereover, including, but not limited to, the FAA, which may be necessary for the conduct in the Leased Premises of its business operations and activities. Without limiting the generality of the foregoing, Tenant shall comply with all applicable laws, resolutions, codes, rules, orders, directions, ordinances and regulations of any department, bureau or agency or any governmental authority having jurisdiction over the operations, occupancy, maintenance and use of the Leased Premises for the purpose demised hereunder, except for those requiring major alterations to the Leased Premises as distinguished from those relating to furniture, fixtures or 51 equipment of Tenant therein. Tenant shall indemnify and save City harmless from and against any claims, penalties, losses, damages or expenses imposed by reason of Tenant's violation of any applicable law or the rules and regulations of governmental authorities having jurisdiction thereof. d) Notwithstanding any other remedies of City hereunder, in the event of a breach of this Section 5.1, Tenant, upon receipt of written notice from City of said breach, shall cure said specified breach within five (5) business days. If cure is not performed within five (5) business days, City, at its option, may terminate this Agreement upon thirty (30) days' written notice. However, if Tenant has undertaken steps to cure within five (5) business days, then City shall not terminate this Agreement unless Tenant fails to diligently complete said cure. In such event, City may terminate this Agreement upon thirty (30) days written notice. Notwithstanding the foregoing, if at any time Tenant's breach has a material adverse effect on the operations of the Airport or creates an emergency situation that, in City's reasonable estimation, presents a risk to public health or safety, Tenant shall immediately commence to cure such breach. 5.2 Restrictions on Use. a) Tenant shall not use or permit the use of the Leased Premises for any purpose other than that set forth in Section 5.1 above, and Tenant shall comply promptly with all applicable laws, rules and regulations regarding the use of the Leased Premises, including, but not limited to all rules and regulations promulgated by the FAA. b) Tenant shall not use or permit the use of the Leased Premises in any manner that will (A) tend to create or permit any waste or nuisance, (B) tend to disturb other tenants or users of the Airport, (C) invalidate or cause cancellation or be in conflict with fire or other hazard insurance policies covering the Airport, or (D) increase the rate of fine insurance for the Airport or of property located therein, over that rate in effect on the Commencement Date hereof. Tenant, at its expense, shall comply with all rules, orders, regulations or requirements of the State and City Fire Code. 5.3 Airport Use. In connection with the ownership and use of the Airport by City, Tenant hereby agrees as follows: a) City reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or views of Tenant, and without interference or hindrance. If the foregoing development or improvement shall have a material adverse effect on Tenant's use of the Leased Premises, the Parties hereto shall meet and confer prior to the commencement of such development or improvement. b) City reserves the right, but shall not be obligated to Tenant, to maintain and keep in repair the landing area of the Airport and all publicly -owned facilities of the Airport to standards established by City in City's sole discretion, together with the right to direct and control all activities of Tenant in this regard. c) This Agreement shall be subordinate to the provisions and requirements of any existing or future agreement between City and agencies of the United States relative to the development, operation or maintenance of the Airport. 4- d) In the event any future structure or building is planned for the Leased Premises or in the event of any planned modification or alteration of any present or future building or structure situated on the Leased Premises, Tenant shall comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations. e) It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of any exclusive right within the meaning of Section 308(a) of the Federal Aviation Act of 1958 (49 U.S.C. Section 1349). f) There is hereby reserved to City, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Leased Premises. This public right of flight shall include the right to cause within the said airspace any noise inherent in the operation of any aircraft used for navigation or flight through the said airspace or landing at, taking off from or operating on the Airport. g) Tenant, by accepting this Agreement, expressly agrees for itself, its successors and assigns that it will not permit any natural growth or other obstruction on the land leased hereunder above a height as determined by the application of the requirements of Part 77 of the Federal Aviation Regulations. In the event the aforesaid covenants are breached, City reserves the right to remove the offending structure or object, all of which shall be at the expense of Tenant. h) Tenant shall not make use of the Leased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport, or which might otherwise constitute a hazard, In the event the aforesaid covenant is breached, City reserves the right to enter upon the Leased Premises and cause the abatement of such interference, at the expense of Tenant. i) This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has, or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport, or the exclusive or nonexclusive use of the Airport, by the United States during the time of war or national emergency or otherwise. 0) Tenant shall conform to the Airport Rules and Regulations and FAA safety and security rules and regulations regarding use of the Airport operations area including runways, taxiways, aircraft aprons by vehicles, employees, customers, visitors, etc. in order to prevent security breaches and avoid aircraft incursions and vehicle/pedestrian deviations; will complete and pass an airfield safe driving instruction program when offered or required by the Airport, and will be subject to penalties as prescribed by the Airport for violations of the Airport safety and security requirements. 5.4 Airport Security, Tenant is responsible for maintaining security in and around the Leased Premises or any other area adjacent to or upon the Airport which Tenant has an exclusive right to use or which Tenant otherwise controls. Tenant is further responsible for maintaining security with respect to access to and entry upon Airport operations areas, or other areas of the Airport designated by City from time to time as security areas, by employees, subtenants, Ws contractors, invitees or customers of Tenant or any other person who enters the Airport operations areas at Tenant's invitation, direction, or authority, whether through or from the Leased Premises or otherwise. 5.5 Hazardous Materials. a) Restrictions. Tenant shall not cause or permit any hazardous materials or toxic substances to be brought upon, kept or used in or about the Leased Premises or the Airport by Tenant, its agents, employees, contractors or invitees, without the prior written consent of City. City's consent shall not be unreasonably withheld so long as Tenant demonstrates to City's reasonable satisfaction and covenants to City that such hazardous materials or toxic substances are necessary or useful to Tenant's business and will be used, kept and stored in a manner that complies with all laws relating to any such hazardous materials or toxic substances so brought upon or used or kept in or about the Leased Premises or the Airport. If Tenant breaches the obligations stated in the preceding sentence, or if the presence of hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in contamination of the Leased Premises or the Airport, or if contamination of the Leased Premises or the Airport by hazardous materials or toxic substances otherwise occurs for which Tenant is legally liable to City for damage resulting therefrom, then Tenant shall indemnify, defend and hold City harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Leased Premises or the Airport, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Leased Premises or the Airport, damages arising from any adverse impact on marketing of space in the Airport, and sums paid in settlement of claims, actual attorneys' fees, consultant fees and expert fees), which arise during or after the term of the Agreement as a result of such contamination. This indemnification of City by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions, including regular inspections, or any clean up, remedial, removal or restoration work required or recommended by any federal, state or local governmental agency or political subdivision because of hazardous materials or toxic substances present in the soil or ground water on or under the Leased Premises and/or the Airport. The indemnity, defense and hold harmless obligations of Tenant hereunder shall survive any termination of this Agreement. Without limiting the foregoing, if the presence of any hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in any contamination of the Leased Premises or the Airport, Tenant shall promptly take all actions at its sole expense as are necessary to return the Leased Premises and the Airport to the condition existing prior to the introduction of any such hazardous materials or toxic substances; provided that, City's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions, in City's sole and absolute discretion, would not potentially have any material adverse long-term or short-term effect on the Leased Premises or the Airport. 6. OPERATING EXPENSES. 6.1 Taxes and Assessments. Tenant recognizes and understands that this Agreement may create a possessory interest subject to property taxes pursuant to Revenue & Taxation Code Section 107.6 and SZ that, if a possessory interest is created, Tenant shall, in accordance with this Section, be responsible for payment of property taxes levied against such possessory interest. Any documentary transfer tax assessed upon the creation of a leasehold interest in the Premises under this Agreement shall be paid by Tenant. Tenant hereby expressly acknowledges that City has given Tenant notice that Tenant's possessory interest in the demised premises may be taxed. Tena is initials 7. UTILITIES AND SERVICES. 7.1 Utilities. During the term of this Agreement, Tenant agrees to pay all charges and expenses in connection with utility services furnished to the Leased Premises and to protect City and the Leased Premises from all such charges and expenses. Given that the utilities are not separately metered for the Leased Premises, Tenant shall reimburse City for Tenant's pro rata share, of all shared utilities within ten (10) days after billing by City. 7.2 Tenant acknowledges that City has no obligation to provide utilities except those already furnished as of the date of this Agreement to the Premises or additional utilities. City shall not be liable to Tenant under any circumstances for damages or loss to Tenant's property, injury to person or property, or consequential damages, however occurring, through, in connection with, or incidental to failure to furnish or interruption of any utilities or services. 7.3 Tenant shall comply with all rules and regulations which City, any governmental agencies or authorities, or any utility company may establish for the use, proper functioning and protection of any such utility. REPAIRS AND MAINTENANCE. 8.1 Tenant's Obligations to Maintain and Repair. Tenant shall maintain, or cause to be maintained, the Leased Premises and every pant thereof in good order, condition and repair according to standards determined by City (whether or not such part of the Leased Premises requiring repair, or the means of repairing the same, are reasonably or readily accessible to Tenant, and whether or not the need for such repairs occurs as a result of Tenant's use, any prior use, the elements or the age of such part of the Leased Premises), including, without limiting the generality of the foregoing, (A) all buildings, structures or fixtures, including foundations, roofs, ceilings, floors, interior and exterior walls, (B) store fronts, windows, doors, hangar doors, plate glass, showcases, skylights, entrances and vestibules located within the Leased Premises, (C) automobile and aircraft pavement, driveways, landscaping, parking lots, fences and signs, and D) all sprinkler systems, plumbing, sewers, drainage devices, electrical facilities, equipment and other utilities or facilities serving the Leased Premises. Tenant shall commence any repair within thirty (30) days after the receipt by Tenant of written notice of the need for such repair, including any notice from City. City shall not be liable to Tenant by reason of any injury to or interference with Tenant's business arising from or connected with the need for or the making of any repairs, alterations or improvements. All repairs, modifications or improvements to the Leased Premises shall be performed in accordance with the building standards of the City, and it 7- shall be the responsibility of Tenant to secure appropriate permits from the City . Tenant shall keep the exterior of the improvements on the Leased Premises in a reasonably neat and attractive condition, free from waste or debris, and replace any trees, shrubs, plants, and ground cover as may be needed. Tenant shall screen and landscape all outside storage areas and service yards of the Leased Premises with fencing and landscaping approved by City, and shall not allow any temporary structures or facilities on the Leased Premises, without City's reasonable approval. 8.2 City's Remedies. In the event Tenant fails to perform its obligations under Section 8.1, City may, pursuant to Section 14.4 of this Agreement, after fifteen (15) days' written notice to Tenant to cure such failure, enter upon the Leased Premises and put the same in good order, condition and repair, 8.3 No City Oblieations. City shall have no obligation to make any repairs to the Leased Premises other than as expressly and specifically set forth in this Agreement. Tenant hereby waives any and all rights provided in Sections 1941 through 1942, inclusive, of the Civil Code of California and hereby waives, to the extent permissible, any rights other than statutes or laws now or hereafter in effect which are contrary to the obligations of Tenant under this Agreement, or which place obligations upon City in addition to those provided in this Agreement. 8.4 City's Reservations of Rights. During the term of this Agreement, City reserves the right, in its sole discretion, to reconstruct, alter or improve the aircraft pavement areas of the Leased Premises, to such standards as it shall determine; provided, however, if such reconstruction, alteration or improvement to the aircraft pavement areas would result in a material adverse effect on Tenant's use of the Leased Premises, the parties hereto shall meet and confer prior to the commencement of such reconstruction, alteration or improvement. Tenant hereby acknowledges that City has no obligation to make such alterations or improvements. 8.5 Indemnity. Tenant shall indemnify and save harmless City against all actions, claims and damages by reason of (A) Tenant's failure to perform the terms of this Section 8, or B) Tenant's nonobservance or nonperformance of any law, ordinance or regulation applicable to the Leased Premises, and any liability or duty to repair imposed by the laws of California. 9. PLANS AND SPECIFICATIONS; CONSTRUCTION; LIENS AND CLAIMS. 9.1 Approval of Plans. No improvement shall be erected, placed, altered or maintained on the Leased Premises unless plans and specifications have been approved in writing by City, at City's sole discretion. Prior to commencing construction of any building, structure or improvement (not including the interval layout) on the Leased Premises, Tenant shall notify City of the date of commencement and expected completion thereof and shall submit for approval plans and specifications in accordance with applicable rules and regulations of the City. 9.2 Time for Approval. Tenant shall notify City in writing when completed plans and specifications for improvements to be erected, placed or altered on the Premises have been submitted to City ("Notice"). Such plans and specifications shall be processed in accordance with the normal procedures of the City. If City does not approve the plans and specifications, it shall notify Tenant of the reasons for its disapproval, and failure to so notify Tenant shall be 10 deemed approval of the plans and specifications. By approving the plans and specifications, City does not represent or warrant that such plans and specifications comply with applicable law. Tenant shall be responsible, at Tenant's sole cost and expense, for securing all necessary governmental or quasi -governmental approvals of the plans and specifications and for securing all permits necessary to construct and operate any improvements or Approved Improvements. 9.3 Approval Delays. In the event the required approval process exceeds a period of 60 (sixty) days from the Commencement Date, or if Tenant is unable to obtain approvals necessary to use the Leased Premises for the use set forth in in this Agreement, Tenant shall have the option to terminate this Agreement in its entirety. 9.4 Commencement of Construction. Once Tenant has commenced construction, Tenant shall pursue the same with reasonable speed and dispatch in compliance with the approved plans and specifications. All construction shall be in accord with all applicable laws, ordinances and regulations. Tenant's construction shall not interfere with City's.operation of the Airport, and Tenant shall comply with all directives of City related thereto. If Tenant is prevented from completing improvements on account of strikes, lockouts, failure of contractor or subcontractors, inability to procure material or labor in the free market, governmental restrictions, fire, earthquake, the elements, or other casualty or similar extraordinary conditions beyond Tenant's reasonable control (excluding financial difficulties, economic conditions or inability to obtain governmental approvals), then the Tenant shall thereafter proceed with all reasonable speed and dispatch to complete the improvements. 9.5 Liabilities. By approving plans and specifications, City assumes no liability therefor, or for any defect resulting from the plans and specifications. Tenant indemnifies and shall hold City harmless from any damage, loss or prejudice claimed, and from all expenses incurred arising out of approvals of plans and specifications or any improvement on the Premises. Tenant hereby assigns to City all warranties and guarantees of all material suppliers, contractors and subcontractors furnishing material or labor or otherwise relating to any improvements or Approved Improvements. 9.6 Approved Buildings and Improvements. All of the improvements shown in the approved plans and specifications constitute the "Approved Improvements." Substantial modifications to Approved Improvements shall be made only with prior written approval of City, except that City's prior written approval shall not be required for changes to the interior of any building on the Leased Premises. Notwithstanding the foregoing, nothing in this Section 9.6 shall limit, alter, or waive the building and permit requirements of the City. 9.7 Notice of Work. Before commencement of any construction, alteration, addition, replacement or restoration of any building, structure or other improvement, Tenant shall (A) give to City written notice of the work to be performed, specifying the nature and location of the intended work and the expected date of commencement and completion thereof, and (B) provide City with written plans and specifications therefor, and shall have obtained the written approval thereof from the City as required above. City reserves the right at any time and from time to time to post and maintain on the Leased Premises such notices as may be necessary to protect City against liability for all such liens and claims. 50 9.8 Covenant Against Liens and Claims. Tenant shall not allow or permit to be enforced against the Leased Premises or any part thereof, any mechanic's, materialmen's, contractor's or subcontractor's liens arising from any claim growing out of work of any construction, repair, restoration, replacement or improvement, or any other claim or demand no matter how the same may arise. Tenant shall pay or cause to be paid all of said liens, claims or demands before any lawsuit is brought to enforce them against the Leased Premises. Tenant agrees to indemnify and hold the City and the Leased Premises free and harmless from all liability for any and all such liens, claims and demands, together with reasonable attorneys' fees and all costs and expenses incurred by City in connection therewith. 9.9 Tenant's Right to Contest Liens. Notwithstanding anything to the contrary set forth above, if Tenant shall in good faith contest the validity of any such lien, claim or demand, then Tenant shall, at its expense, defend itself and City against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against City or the Leased Premises. A condition to Tenant's right to contest the validity of any lien, claim or demand shall be that if City shall require, Tenant shall furnish to City evidence of a surety bond satisfactory to City in an amount at least equal to the contested lien, claim or demand, the effect of which is to indemnify City against liability for the same, and to hold the Leased Premises free from the effect of such lien or claim. 9.10 City Paving Claims. In the event Tenant shall fail to pay and discharge or cause to be paid and discharged, when due and payable, any tax, assessment or other charge upon or in connection with the Leased Premises, or any lien or claim for labor or material employed or used or any claim for damages arising out of the construction, repair, restoration, replacement, maintenance and use of the Leased Premises and any improvements thereon, or any judgment on any contested lien or claim, or any insurance premium or expense in connection with the Leased Premises and improvements, or any other claim, charge or demand which Tenant has agreed to pay or cause to be paid under the terms of this Agreement, and if Tenant, after fifteen (15) days' written notice from City to do so shall fail to pay and discharge the same, or in the event Tenant contests such tax, assessment, claim or charge and fails to post security as provided elsewhere in this Agreement, then City may, at his option, pay any such tax, assessment, insurance expense, lien, claim, charge or demand, or settle or discharge any action therefor, or judgment thereon, and all costs, expenses and other sums incurred or paid by City in connection with any of the foregoing shall be paid by Tenant to City upon demand, together with ten percent (1M) interest thereon from the date incurred or paid. Any default in such repayment by Tenant shall constitute a breach of the covenants and conditions of this Agreement. 9.11 Prevailing Wage. Tenant acknowledges that any improvements, alterations or repairs on the Leased Premises, may be subject to the payment of prevailing wage under the provisions of the California Labor Code. To the extent any such improvements, alterations, or repairs are subject to prevailing wage requirements, the following shall apply: a) Tenant shall and shall cause its contractors and subcontractors to: pay prevailing wages in the construction of any improvements, or alterations on the Leased Premises, or any other work as those wages are determined pursuant to Labor Code Sections 1720 et seq.; to employ apprentices as required by Labor Code Sections 1777.5 et seq.; and comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 10- 1776, 1777.5 et seq.,1810-1815 and the implementing regulations of the Department of Industrial Relations (the "DIR") for all such Labor Code sections. b) Tenant shall indemnify, hold harmless and defend (with counsel selected by the City), to the extent permitted by applicable law, City, its councilmembers, commissioners, officials, employees and agents, against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Tenant, or its contractors or subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq., to hire apprentices in accordance with Labor Code Sections 1777.5 et seq., or to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the DIR in connection with the work performed pursuant to this Agreement. The provisions of this Section shall survive expiration or earlier termination of this Agreement. 10. REPAIR AND RESTORATION. 10.1 If during the term of this Agreement any building or improvement on the Leased Premises or any part thereof shall be damaged or destroyed by fire or other casualty, Tenant shall, at its sole cost and expense, repair or restore the same according to the original plans thereof or to such modified plans as shall be previously approved in writing by City pursuant to Section 9. If such damage or destruction occurs during the last eighteen (18) months of the Agreement term Tenant shall have no duty to repair or restore, and if Tenant elects not to repair or restore, this Agreement shall terminate and City shall receive all insurance proceeds that are attributable to those improvements that would become the property of the City pursuant to Section 15. Such work of repair or restoration shall be commenced within one hundred twenty 120) days after the damage or loss occurs and shall be completed with diligence but not longer than one (1) year after such work is commenced, provided, however, that the time for completion of such repair and restoration shall be extended as appropriate. If insurance proceeds provided for above shall be insufficient for the purpose of such restoration and repair, or if the casualty is one not required to be insured against, then Tenant shall make up the deficiency out of its own funds. Tenant waives the provisions of Civil Code Sections 1932(2) and 1933(4) with respect to any destruction of the Leased Premises. 11. INDEMNITY. 11.1 Citv's Non -liability. City shall not be liable for any loss, damage or injury of any kind to any person or property arising from any use of the Leased Premises, or any part thereof, or caused by any defect in any building, structure or other improvement thereon or in any equipment or other facility therein, or caused by or arising from any act or omission of Tenant or any of its agents, employees, licensees or invitees, or by or from any accident on the Leased Premises or any fire or other casualty thereon, or occasioned by the failure of Tenant to maintain the Leased Premises and all improvements thereto in a safe condition, or arising from any other cause except where caused by the sole negligence or willful misconduct of City, its agents or employees. 11.2 Indemnification. To the fullest extent permitted by law, Tenant shall, at Tenant's sole expense and with counsel reasonably acceptable to City, defend, indemnify, and hold 11- harmless City and City's officers, officials, employees and agents from and against all claims, including demands, losses, actions, causes of action, damages, liabilities, expenses, charges, assessments, fines or penalties of any kind, and costs including consultant and expert fees, costs of investigation, court costs and attorney's fees) from any cause, arising out of or relating directly or indirectly) to this Agreement, the tenancy created under this Agreement, or the Premises, including without limitation: a) The use or occupancy, or manner of use or occupancy, of the Leased Premises or buildings by Tenant; b) Any act, error or omission, or negligence of Tenant or of any subtenant, invitee, guest, contractor or licensee or Tenant or any subtenant in, on, or about the Leased Premises; c) Tenant's conducting or managing of its business; d) Any alterations, activities, work, or things done, omitted, permitted, allowed, or suffered by Tenant in, at, or about the Leased Premises or buildings, including the violation of or failure to comply with any insurance requirements or any applicable laws, statues, ordinances, standards, rules, regulations, orders, decrees, or judgments in existence on the Commencement Date or enacted, promulgated, or issued after the date of this Agreement, and; e) Any breach or default in performance of any obligation on Tenant's part to be performed under this Agreement, whether before or during the term of this Agreement or after its expiration or earliest termination. 11.3 This indemnification extends to and includes, without limitation, claims for: a) Injury to any persons (including death at any time resulting from that injury); b) Loss of, injury or damage to, or destruction of property (including loss of use at any time resulting from that loss, injury, damage, or destruction); and c) All economic losses and consequential or resulting damage of any kind. 11.4 Tenant's indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until all claims against City involving any of the indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitations. 12. INSURANCE. 12.1 Required Insurance Coverage. Prior to commencing any work or operations under this Agreement, Tenant at its sole cost and expense and for the Term of this Agreement, all extensions thereof, shall obtain and maintain or shall cause to be obtained and maintained insurance against claims for injuries to persons or damages to property which may arise from or in connection with the activities of Tenant and its agents, employees and contractors, meeting at 12- least the minimum insurance requirements set forth in Exhibit "B", attached hereto and incorporated herein by this reference, on terms and conditions and in amounts as required by City from time to time and with insurers acceptable to City. 12.2 Tenant shall provide City with certificates of insurance or copies of all policies and such endorsements as may be required by City. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager of the City of Palm Springs Risk Manager"). 13. DEFAULT. 13.1 Events of Default. The occurrence of any of the following shall constitute an event of default of this Agreement on the part of the Tenant: a) Tenant fails to make the payment of any installment of rent or other sum when due hereunder ("Monetary Default") within ten (10) days from when due. b) Failure to perform any obligation, agreement or covenant under this Agreement ("Non -Monetary Default") and such failure continues for fifteen (15) days after written notice of such failure, or if such Non -Monetary Default cannot be cured within fifteen 15) days, Tenant has not commenced corrective action and prosecuted the same to completion with due diligence, or the Non -Monetary Default is of such a nature that it cannot be cured by any action of Tenant. c) Failure to pay any insurance premium, lien, claim, demand, judgment or other charge provided for in this Agreement to be paid or caused to be paid by Tenant at the time and in the manner as provided for in this Agreement. d) Failure to maintain the Leased Premises or cause the same to be maintained as provided for in this Agreement. e) Abandonment or vacation of the Leased Premises for a continuous period in excess of thirty (30) days without payment of rent. Tenant waives any right to notice Tenant may have under Section 1951.3 of the Civil Code of the State of California, the terms of this Section 13.1 being deemed such notice to Tenant as required by said Section 1951.3. f) Default by Tenant under the terms of any mortgage on the estate of Tenant. g) The filing of any voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. If under applicable law, the trustee in bankruptcy or Tenant has the right to affirm this Agreement and continue to perform the obligations of Tenant hereunder, such trustee or Tenant shall, in such time period as may be permitted by the bankruptcy court having jurisdiction, cure all defaults of Tenant hereunder outstanding as of the date of the affirmance of this Agreement and provide to City such adequate assurances as may be necessary to ensure City of the continued performance of Tenant's obligations under this Agreement. 13- entitled under applicable law or at equity, City shall be entitled to recover from Tenant: (1) the worth at the time of award of the unpaid rent and other amounts which had been earned at the time of termination, (2) the worth at the time of award of the amount by which the unpaid rent and other amounts that would have been earned after the date of termination until the time of award exceeds the amount of such rent loss that Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent and other amounts for the balance of the Term after the time of award exceeds the amount of such rent loss that the Tenant proves could be reasonably avoided; and (4) any other amount and court costs necessary to compensate City for all detriment proximately caused by Tenant's failure to perform Tenant's obligations under this Agreement or which, in the ordinary course of things, would be likely to result therefrom. The "worth at the time of award" as used in (3) above shall be computed by discounting such amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (I %). If this Agreement provides for any periods during the Term during which Tenant is not required to pay rent or if Tenant otherwise receives a rent concession, then upon the occurrence of an event of default, Tenant shall owe to City the full amount of such rent or value of such rent concession, plus five percent (5%) interest, calculated from the date that such rent or rent concession would have been payable. 14.4 City's Option to Cure. Notwithstanding the foregoing, if Tenant fails to provide necessary repair and maintenance of the Premises and all improvements thereon, City shall have the right but not the obligation, after notice provided, and failure of Tenant to cure or commence and diligently pursue a cure to such default, to enter the Leased Premises and take all corrective action necessary in the sole judgment of City. Any such entry shall be at the sole risk and expense of Tenant. Tenant shall immediately, upon presentation of a statement therefor, reimburse City for all costs incurred by City in taking such corrective action with interest on said sums from the date of payment by City at the lower of: (A) the highest rate allowed by law; or B) two points over the prime rate charged from time to time by the Bank of America, or if the Bank of America no longer exists, an equivalent institution. Nothing in this Section shall: (i) require City to take any corrective action on the Leased Premises; (ii) diminish the rights and remedies of City under this Agreement, whether or not City elects to take such corrective action; and (iii) cause a waiver by City of any of its rights and remedies under this Agreement. Any such reentry shall be allowed by Tenant without hindrance, and City shall not be liable in damages for any such reentry, or be guilty of trespass or forcible entry. 14.5 Remedies Cumulative. All of City's rights, privileges and elections or remedies are cumulative and not alternative, to the extent permitted by law and except as otherwise provided herein. 14.6 Replacement of Statutory Notice Requirements. When this Agreement requires service of a notice, that notice shall replace rather than supplement any equivalent or similar statutory notice, including any notice required by California Code of Civil Procedure Section 1161 or any similar or successor statute. When a statute requires service of a notice in a particular manner, service of that notice (or a similar notice required by this Agreement) in the manner required by this Section shall replace and satisfy the statutory service -of -notice procedures, including those required by California Code of Civil Procedure Section 1162 or any similar or successor statute. 15- 15. SURRENDER OF LEASED PREMISES 15.1 Vacation. Upon expiration or termination of this Agreement, Tenant shall vacate and surrender possession of the Leased Premises to City. If Tenant fails to do so, City may immediately commence eviction proceedings in conformance with applicable law. 15.2 Reversion of Improvements. Unless otherwise stated herein, upon expiration or earlier termination of this Agreement, at City's option, the ownership of improvements made to the Leased Premises shall transfer and become the property of City. If City elects not to claim such property, Tenant shall remove and/or demolish any and/or all improvements (as designated by City) and return the Leased Premises to its original condition and character, ordinary and reasonable wear and tear excepted. 15.3 Repair by City. In the event that Tenant fails to return the Leased Premises in good condition, City may perform any work necessary to correct deficiencies and Tenant shall be obliged to pay the balance to City. 15.4 Personal Property. Tenant shall remove all personal property upon expiration and/or termination of this Agreement. If Tenant fails to do so, City may remove and dispose of all personal property at Tenant's sole risk, cost, and expense and without any liability to City and Tenant shall be obliged to pay the balance to City. 16. ASSIGNMENT AND SUBLETTING. 16.1 Restriction of Assignment and Subletting. Tenant shall not encumber, sublease, assign or otherwise transfer this Agreement, or any right or interest hereunder, or in or to any of the improvements constructed or installed on the Leased Premises, in whole or in part, without the prior written consent of City, which may be withheld in City's sole discretion. It shall not be unreasonable for City to withhold or condition its consent based on the prospective assigneds/sublessee's financial strength, credit history or any other factor which City reasonably believes germane to a tenant's ability and willingness to perform the obligations of this Agreement. No such assignment or sublease shall release Tenant of further liability under this Agreement unless express written approval is signed by City. 16.2 Effect of Failure to Comply. Except as provided above, no encumbrance, assignment or other transfer, whether voluntary, involuntary, by operation of law, under legal process, through a receivership, bankruptcy or otherwise, shall be valid or effective without the prior written consent and approval of City. Except as provided in Section 16, if Tenant attempts to make or allow to be made any subleasing, encumbrance, assignment or other transfer except in accordance with the provisions of this Section 16, then any of the foregoing events shall be deemed a breach of the conditions and restrictions of this Agreement, and upon such breach, City may, at its option, terminate this Agreement at once by written notice, and upon such termination this Agreement shall end and be of no further force. 17. REOUIRED FAA CLAUSES. 17.1 Non -Exclusive Use. 16- a) This Agreement and all of the provisions hereof shall be subject to whatever right the United States Government has now or may have in the future or may acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or non-exclusive use of the Airport by the United States Government during the time of war or national emergency. If any such agreement is executed, the terms and conditions of this Agreement shall be subordinate to the provisions of any agreement between City and the United States relative to the Airport. b) It is clearly understood by Tenant that no right or privilege has been granted which would operate to prevent any person, firm, or corporation operating aircraft at the Airport from performing any services on its own aircraft with its own Employees (including but not limited to, fueling, maintenance, and repair) that it may choose to perform. c) Nothing in this Agreement shall be construed, in any way, as City granting Tenant an exclusive right to engage in any aeronautical activity at the Airport. 17.2 Non -Discrimination. a) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises described in this Agreement for a purpose for which a Department of Transportation ("DOT") program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such Improvements in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said legal requirements may be promulgated or amended from time to time. b) Notwithstanding any other provision of this Agreement, during the performance of this Agreement, Tenant, for itself, its heirs, successors, and assigns, as part of the consideration of this Agreement does hereby agree, as a covenant running with the land, that: (a) no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of the Leased Premises; (b) in the construction of any Improvements on, over, or under the Leased Premises, and the furnishing of services therein or thereon, no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, or denied the benefits of, such activities, or otherwise be subjected to discrimination; (c) in the breach of any of the above nondiscrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess the Leased Premises and hold the same as if this Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 have been followed and completed, including expiration of appeal rights; (d) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby agree as a covenant running with the land that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such improvements and services in compliance with all other requirements imposed pursuant to 17- 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said Regulations may by amended. c) Tenant will comply with pertinent statues and rules as are promulgated or amended from time to time to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from federal assistance. This provision obligates Tenant or its transferee for the period during which federal assistance is provided or is in the form of personal Property or real Property or interest therein or structures or Improvements thereon. In these cases, this provision obligates Tenant or any transferee for the longer of the following periods: (a) the period during which the Leased Premises is used by the sponsor or any transferee for a purpose for which federal assistance is extended, or for another purpose involving the provision of similar services or benefits, or (b) the period during which City or any transferee retains ownership or possession of the Leased Premises. d) Tenant shall not discriminate in any manner against any employee or applicant for employment because of political or religious opinion or affiliation, race, creed, color, national origin, sex, age, or disability and further, Tenant shall include a similar clause in all subcontracts. Tenant agrees City has the right to take such action against Tenant as the government may direct to enforce this provision of this Agreement. 18. MISCELLANEOUS. 18.1 Compliance with Governmental Regulations. Tenant shall, at its own cost and expense, promptly and properly, comply with and execute, including the making of any alteration to the Leased Premises, all orders, regulations, laws and requirements of all governmental authorities arising from the use or occupancy of, or applicable to, the Leased Premises. 18.2 Disclaimer of Representation. Except as otherwise specifically provided herein, City has made no representations or warranties to the Tenant concerning the Leased Premises, the present use thereof or the suitability for Tenant's intended use of the property. The foregoing disclaimer includes, without limitation, topography, climate, air, water, water rights, utilities, present and future zoning, soil, subsoil, drainage, access to public roads, proposed routes of roads, or extension thereof, or effect of any state or federal environmental protection laws or regulations. Tenant represents and warrants to City that Tenant and Tenant's representatives have made or will make their own independent inspection and investigation of the Leased Premises and Tenant, in entering into this Agreement, is relying solely on such inspection and investigation. No patent or latent physical condition of Leased Premises, whether or not known or discovered, shall affect the rights of either party hereto. Any agreement, warranties or representations not expressly contained herein shall in no way bind either Tenant or City. City and Tenant waive any right of rescission and all claims for damages by reason of any statement, representations, warranty, promise and agreement, if any, not contained in this Agreement. 18.3 Priority of Agreement. This Agreement is subject and junior to all existing easements, covenants, conditions and restrictions and other matters and encumbrances of record. 18- 18.4 Inspection. City reserves the right for City and City's agents and representatives to enter upon the Leased Premises at any reasonable time upon five (5) days prior written notification for the purpose of attending to City's interest hereunder, and to inspect the Leased Premises. 18.5 Attorneys' Fees. In the event any action is brought by City to recover any rent due and unpaid hereunder or to recover possession of the Leased Premises, or in the event any action is brought by City or Tenant against the other to enforce or for the breach of any of the terms, covenants or conditions contained in this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees to be fixed by the Court, together with costs of suit therein incurred. 18.6 Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Agreement shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof. No delay or omission of City to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Tenant under this Agreement. The various rights and remedies reserved to City herein including those not specifically described in this Agreement shall be cumulative and, except as otherwise provided by California statutory law in force at the time of execution of this Agreement, City may pursue any or all of such rights and remedies whether at the same time or otherwise. 18.7 Agreement Binding Upon Successors and Assigns. Subject to the limitations on assignment and subleasing, each of the terms, covenants and conditions of this Agreement shall extend to and be binding on and inure to the benefit of not only City and Tenant, but each of their successors and assigns. Whenever in this Agreement reference is made to either City or Tenant, the reference shall be deemed to include, wherever applicable, the successors and assigns and such parties the same as if in every case expressed. 18.8 Relationship of Parties. The relationship of the parties hereto is that of City and Tenant, and it is expressly understood and agreed that City does not in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise. 18.9 Time of the Essence. Time is expressly declared to be of the essence of this Agreement. 18.10 Headings and Titles. The marginal headings or titles to the Sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. 18.11 Governing Law and Venue. This Agreement shall be deemed to have been made in, and shall be construed in, accordance with the statutes and laws of the State of California without regard to choice of law provisions that would cause the application of the law of another jurisdiction, and without regard to conflicts of law principles. Any suit, action or proceeding permitted hereunder or any judgment entered by any court in respect thereof, will be brought in the state courts sitting in Riverside County, California. 19- 18.12 Entire Agreement: Amendments. This Agreement, including the exhibits attached hereto and all documents referenced herein, all of which are incorporated herein by reference, contain the entire agreement of the parties hereto with respect to the matters covered hereby, and no other previous agreement, statement or promise made by any party hereto which is not contained herein shall be binding or valid. No amendment or modification to this Agreement shall be effective unless in writing and signed by both City and Tenant. 18.13 Force Maieure. Except as to the payment of rent, neither of the parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in any amount for any delay caused by fire, earthquake, explosion, flood, hurricane, the elements, acts of God, or the public enemy, action or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes, or lockouts or any other cause whether similar or dissimilar to the foregoing, which is beyond the control of such parties and any delay due to said causes or any of them shall not be deemed a breach of or default in the performances of this Agreement. 18.14 Sevembility. If any provision in this Agreement is held to be illegal, invalid, or unenforceable in full or in part, for any reason, by any court of competent jurisdiction, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid, and enforceable. The illegality, invalidity, or unenforceability of any such provision shall in no way affect any other provisions in this Agreement, provided that the illegality, invalidity, or unenforceability of any such provision does not materially prejudice either Party with regard to the respective rights and obligations of each Party contained in the valid terms and conditions of this Agreement. 18.15 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 18.16 Notices. Any notice to be given or other document to be delivered by either Party to the other party may be given by personal delivery, generally recognized overnight courier, prepaid, or may be deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed to the Party for whom intended as follows: To City: City of Palm Springs 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 To Tenant: The LGBTQ Community Center of the Desert 1301 N Palm Canyon Drive Palm Springs, CA 92262 Either Party hereto may from time to time by written notice to the other party designate a different address which shall be substituted for the one specified above. Notices and documents shall be served upon receipt or, if any notice or other document is sent by registered or certified mail, as provided above, the same shall be deemed served or delivered seventy-two (72) hours after the mailing thereof. 20- SIGNATURE PAGE TO AIRPORT LEASE AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND LGBTQ COMMUNITY CENTER OF THE DESERT IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. TENANT: By: Siena Signature 2^d signatur re iced far Co nation) IMAUb U. Fm4-- CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: % 0 -O2N Item No. 1 . APPROVED AS TO FORM: By. 9 -,+ 3 Cify Attorney APPROVED: By: Scott Stiles City Manager A q qbq ATTEST: By: 114 D Ct C rk 21_ EXHIBIT f°A" DESCRIPTIONMEPICTION OF LEASED PREMISES ATTACHED] 51*a MECH EXHIBIT "B" INSURANCE REQUIREMENTS Tenant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the this Agreement and shall include their agents, representatives, employees or subcontractors. With respect to General Liability, coverage should be maintained for a minimum of five (5) years after contract completion. The cost of all such insurance shall be borne by the Tenant. A. Minimum Scope of Insurance 1,000,000 per occurrence/$3,000,000 aggregate with a $2,000,000 umbrella/excess coverage-- Commercial General Liability 1,000,000 combined single limit -- Auto Liability 1,000,000 -- Worker's Compensation Insurance 2,000,000 per occurrence/aggregate -- Umbrella/Excess Liability Insurance 2,000,000 per occurrence/aggregate -- Cyber Liability One Year of Minimum Monthly Rent -- Business Interruption Insurance Coverage shall be at least as broad as: Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence and $3,000,000 aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projecttlocation (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Tenant has no owned autos, hired (Code 8) and non -owned Code 9) autos, with limit no less than $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than 1,000,000 per accident for bodily injury or disease. 4. Property Insurance: Tenant shall provide property insurance on all personal property and betterments and improvements contained within or on the Leased Premises. Property insurance shall insure against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision. 5. Interruption of Business Insurance: Tenant shall, at its sole cost and expense, maintain business interruption insurance by which the minimum monthly rent will 23- be paid to City for a period of up to one (1) year if the premises are destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, 6. Cyber Liability Insurance, if the Tenant will provide IT services or software or involve the retention of private, non-public information about third parties, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Tenant in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. 7. Umbrella or Excess Policies Umbrella or excess liability insurance is to be excess over the Commercial General Liability, Automobile Liability and Employers' Liability Insurance. The umbrella liability or excess liability policy shall be written on an "occurrence" form with a limit of liability of Two Million Dollars 2,000,000). The Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non- contributory, additional insured, Self -Insured Retentions (SIRS), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true following form" or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Tenant's primary and excess liability policies are exhausted. 8. Builder's Risk Insurance shall be procured by Tenant prior to the commencement of, and throughout the duration of, any construction of improvements or betterments being installed by Tenant on the Property. B. Deductibles and Self -Insured Retentions Self -insured retentions must be declared to and approved by the City. The City may require the Tenant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. C. Other Insurance Provisions 24- 1. The general liability and automobile policies are to contain, or be endorsed to contain, the following provisions: a. The City of Palm Springs, its officers by endorsement, officials, employees and volunteers are to be covered as additional insureds with respect to: liability arising out of activities performed by, or on behalf of, Tenant, premises owned, occupied or used by the Tenant, or automobiles owned, leased, hired or borrowed by the Tenant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officer, officials, employees or volunteers. General liability coverage can be provided in the form of an endorsement to the Tenant's insurance (at least as broad as ISO Form CG 20 10, CG 1185 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). b. The Tenant's insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees and volunteers. For any claims related to this Property, the Tenant's insurance coverage shall be primary and non- contributory insurance coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, or volunteers shall be excess of the Tenant's insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. c. Any failure to comply with reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. Coverage shall state that the Tenant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers' Liability Coverage shall contain a waiver of subrogation by endorsement in favor of the City, its officials, employees, agents and contractors. 3. Builder's Risk City shall be named as a loss payee on any Builder's Risk policy to the full extent allowable and for which the City's insurable interests may appear. 4. All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after 25- thirty (30) days' prior written notice has been given to the City; except that ten (10) days' prior written notice shall apply in the event of cancellation for non-payment of premium. 5. Waiver of Subrogation Tenant hereby grants to City a waiver of subrogation which any insurer may acquire against City, its officers, officials, employees, and volunteers, from Tenant by virtue of the payment of any loss. Tenant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Tenant, its employees, agents, and subcontractors. 6. There shall be no endorsement reducing the scope of coverage required above unless approved by the City's Risk Manager. 7. If the Tenant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Tenant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. D. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than ANII. E. Verification of Coverage Tenant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Tenant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Proof of insurance shall be either emailed in pdf format to: Victoria Carpenter or mailed to the following postal address (or any subsequent email or postal address as may be directed in writing by the Risk Manager): 26- City of Palm Springs Risk Manager 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 F. Subconsultants/Subcontractors Tenant shall require and verify that all subcontractors relating to this Agreement maintain insurance meeting all the requirements stated herein, and Tenant shall ensure that City is an additional insured on insurance required from subcontractors. For COL coverage subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13. G. Review of Coverage These insurance requirements shall be subject to periodic review by City's Risk Manager. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Should the Risk Manager require any change in any coverage such change shall be communicated in writing to Tenant and Tenant shall comply with the said change within thirty (30) days following the date of receipt of the notice. 27- 08/05/2024 Matrix Insurance Solutions 1091 N Palm Canyon Dr Palm Springs, CA 92262 License #: 0L62984 Shanda Wolfe (760)932-0906 (503)479-5112 s.wolfe@matrixinssolutions.com 95950852-681058 1 The LGBTQ Community Center Of The Desert DBA The Center 1301 N Palm Canyon Dr Ste 301 Palm Springs, CA 92262 West American Insurance Company 44393 A Y Y BKW2562882824 06/06/2024 06/06/2025X X X 1,000,000 1,000,000 15,000 1,000,000 3,000,000 3,000,000 United Financial Casualty Company 11770 B Y Y 00651015 06/06/2024 12/06/2024 X 1,000,000 American Fire and Casualty Company 24066 C Y Y EUA2562882824 06/06/2024 06/06/2025XX X 10,000 2,000,000 2,000,000 2,000,000Products Employers Preferred Insurance Company 10346 D Y EIG4779956-03 06/06/2024 06/06/2025 X 1,000,000 1,000,000 1,000,000 City of Palm Springs, its Officers, Employees and Agents are named as additional insured for location 2901 E Alejo Rd, Building 12, Palm Springs, CA 92262. City of Palm Springs 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 (S_W) Printed by S_W on 08/05/2024 at 01:59PM ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD DATE (MM/DD/YYYY) PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTED CLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGG $JECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE CITY OF PALM SPRINGS AIRPORT LEASE This Airport Lease Agreement ("Agreement") is made and entered into this =day of bru�u_, 20ZZJ by and between the City of Palm Springs, a charter city and municipal corporation ("City") and the LGBTQ Community Center of the Desert, a California nonprofit corporation ("Tenant"). City and Tenant may be individually referred to as "Party" or collectively as the "Parties". RECITALS A. The City is the owner and operator of the Palm Springs International Airport ("Airport") located at 3400 E Tahquitz Canyon Way, Palm Springs, CA 92262. B. Tenant desires to lease property from the City in order to operate a community food bank. NOW THEREFORE, for and in consideration of the mutual representations, warranties, covenants, obligations, privileges, conditions, and agreements set forth in this Agreement, the Parties hereby agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The recitals above are true and correct and are hereby incorporated herein by this reference. 2. LEASED PREMISES. 2.1 Lease. City hereby leases to Tenant and Tenant leases from City, certain real property located within the City of Palm Springs, County of Riverside, California, as more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference. This leased property, as defined herein, is leased to Tenant and referred to in this Agreement as the "Leased Premises". 2.2 Acceptance of Leased Premises. Tenant hereby accepts the Leased Premises in the condition existing as of the date hereof. Tenant hereby agrees that the Leased Premises are in a good and tenantable condition and acknowledges that it has inspected the Leased Premises and common areas of the Airport to its satisfaction and acknowledges that City is not obligated to make any repairs or alterations to the Leased Premises or common areas. 2.3 Reservations to City. Tenant further accepts the Leased Premises subject to any and all existing easements and encumbrances. City reserves the right without obligation to install, lay, construct, maintain and repair utilities and appurtenances necessary or convenient in connection therewith in, over, upon, through, across, under and along the Leased Premises or any part thereof, and to enter the Leased Premises for any and all such purposes. City also reserves the right to grant franchises, easements, rights of -way and permits in, over, upon, through, across, under and along any and all portions of the Leased Premises. No right reserved by City in this clause shall be so exercised as to interfere unreasonably with Tenant's operations -1- hereunder, and the rights granted to third parties by reason of this clause shall contain provisions that the surface of the land shall be restored as nearly as practicable to its condition prior to the construction upon completion of any construction. 3. TERM. 3.1 Original Term. The original term of this Agreement shall be for two (2) years, commencing on March 1, 2024 (the "Commencement Date") and ending at on February 28, 2026 ("Original Term"), unless sooner terminated in accordance with this Agreement. 3.2 Possession. The Tenant is granted full and complete access to the Leased Premises as of the Commencement Date of this Agreement and, so long as Tenant is not in default hereunder, the right to its possession for the duration of this Agreement. 3.3 Expiration or Termination of Term. Tenant shall, at the expiration of the term of this Agreement, or upon its earlier termination, return the Leased Premises in conformance with Section 15. Prior to expiration of termination of this Agreement, Tenant shall allow City to inspect the Leased Premises and complete a walk-through to verify the condition of the Leased Premises. 3.4 Holding Over. If Tenant shall hold over the Leased Premises after the expiration of the term hereof with the consent of City, either express or implied, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations hereof; terminable on thirty (30) days written notice given at any time by either party; provided, however, that nothing herein contained shall be construed to give Tenant any rights to so hold over and to continue in possession of the Leased Premises after the expiration of the term hereof. 4. RENTS, FEES, AND OTHER CHARGES. 4.1 Monthly Rent. The monthly rental for the use and occupancy of the Leased Premises for the Original Term shall be One Thousand Five Hundred dollars ($1,500) per month. 4.2 Payments. Payment of rents, fees, and other charges shall be made promptly without notice or demand, in legal tender of the United States of America. (a) Payment of rent shall be made by Tenant to City monthly in advance on or before the first (1st) day of each month. The rent for any partial month shall be prorated. (b) Payment of fees and other charges shall be made by Tenant to City monthly on or before the fifteenth (15th) day of each month for the previous month. (c) Payments of rents, fees, and other charges shall be made by check or money order, payable to City. Payments shall be delivered or mailed to The City of Pahn Springs, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262, attention: Finance Department or to such other location as may be directed in writing by City. Payments shall be made without any abatement, deductions, reductions, offsets, or counterclaims of any kind. Any 50a portion of rent not received on or before fifteen (15) days past the due date, shall be deemed a material default of the terms of this Agreement and a breach. (d) If any check is returned by the bank for any reason, Tenant shall pay a fifty dollar ($50.00) returned check charge, in addition to applicable late fees, until cash, draft or other acceptable form of payment (as specified by the City) is received by the City. In the event of a returned check, the City may demand that payment of the returned check and/or all future payments be made by certified check, cashier's check, money order or cash. 4.3 Late Charges. A late charge equal to ten percent (10%) per month on the unpaid balance for each month the rent is late shall be automatically added to any fees or other charges not received by City by the close of business five (5) calendar days after due and owing. rent not received on or before fifteen (15) days past the due date shall be deemed a default of this Agreement. In addition to late charges, City shall be entitled to interest at the State of California judgment rate plus all costs and expenses incurred by City to collect (or attempt to collect) amounts past due, including without limitation, attorney and court fees, costs, and expenses. (a) At the option of the City, rents tendered to the City subsequent to default may be rejected by the City, or accepted by the City, with the appropriate late fees. The City, at its sole discretion, may reject past due payments and consider the lease in breach. Acceptance of any such late charge by City shall in no event constitute a waiver of City's default with respect to such overdue amount, nor prevent City from exercising any of the other rights and remedies granted hereunder, nor be deemed a waiver of any other existing breach by the Tenant. 5. USE OF THE LEASED PREMISES AND CONDUCT OF TENANT. 5.1 Use of the Leased Premises. (a) Tenant hereby acknowledges that the principal use of the Airport consists of the operation of a public airport and that all other operations and businesses which are now or hereafter permitted by City, including the use hereunder, must be at all times be compatible with such principal use, as City shall, in its sole discretion, determine. (b) The primary use of the Leased Premises permitted under this Agreement shall be a community food bank. Tenant shall, continuously and uninterruptedly during the term of this Agreement, conduct its activity, as permitted herein, upon the Leased Premises unless prevented from so doing by strikes, fire, casualty or other causes beyond Tenant's control, except during reasonable periods for repairing, cleaning and decorating the Leased Premises. (c) Tenant shall, at Tenant's own cost and expense, obtain and maintain all licenses, permits, certificates or other authorizations of any governmental authority having jurisdiction thereover, including, but not limited to, the FAA, which may be necessary for the conduct in the Leased Premises of its business operations and activities. Without limiting the generality of the foregoing, Tenant shall comply with all applicable laws, resolutions, codes, rules, orders, directions, ordinances and regulations of any department, bureau or agency or any governmental authority having jurisdiction over the operations, occupancy, maintenance and use of the Leased Premises for the purpose demised hereunder, except for those requiring major alterations to the Leased Premises as distinguished from those relating to furniture, fixtures or 51 equipment of Tenant therein. Tenant shall indemnify and save City harmless from and against any claims, penalties, losses, damages or expenses imposed by reason of Tenant's violation of any applicable law or the rules and regulations of governmental authorities having jurisdiction thereof. (d) Notwithstanding any other remedies of City hereunder, in the event of a breach of this Section 5.1, Tenant, upon receipt of written notice from City of said breach, shall cure said specified breach within five (5) business days. If cure is not performed within five (5) business days, City, at its option, may terminate this Agreement upon thirty (30) days' written notice. However, if Tenant has undertaken steps to cure within five (5) business days, then City shall not terminate this Agreement unless Tenant fails to diligently complete said cure. In such event, City may terminate this Agreement upon thirty (30) days written notice. Notwithstanding the foregoing, if at any time Tenant's breach has a material adverse effect on the operations of the Airport or creates an emergency situation that, in City's reasonable estimation, presents a risk to public health or safety, Tenant shall immediately commence to cure such breach. 5.2 Restrictions on Use. (a) Tenant shall not use or permit the use of the Leased Premises for any purpose other than that set forth in Section 5.1 above, and Tenant shall comply promptly with all applicable laws, rules and regulations regarding the use of the Leased Premises, including, but not limited to all rules and regulations promulgated by the FAA. (b) Tenant shall not use or permit the use of the Leased Premises in any manner that will (A) tend to create or permit any waste or nuisance, (B) tend to disturb other tenants or users of the Airport, (C) invalidate or cause cancellation or be in conflict with fire or other hazard insurance policies covering the Airport, or (D) increase the rate of fine insurance for the Airport or of property located therein, over that rate in effect on the Commencement Date hereof. Tenant, at its expense, shall comply with all rules, orders, regulations or requirements of the State and City Fire Code. 5.3 Airport Use. In connection with the ownership and use of the Airport by City, Tenant hereby agrees as follows: (a) City reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or views of Tenant, and without interference or hindrance. If the foregoing development or improvement shall have a material adverse effect on Tenant's use of the Leased Premises, the Parties hereto shall meet and confer prior to the commencement of such development or improvement. (b) City reserves the right, but shall not be obligated to Tenant, to maintain and keep in repair the landing area of the Airport and all publicly -owned facilities of the Airport to standards established by City in City's sole discretion, together with the right to direct and control all activities of Tenant in this regard. (c) This Agreement shall be subordinate to the provisions and requirements of any existing or future agreement between City and agencies of the United States relative to the development, operation or maintenance of the Airport. -4- (d) In the event any future structure or building is planned for the Leased Premises or in the event of any planned modification or alteration of any present or future building or structure situated on the Leased Premises, Tenant shall comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations. (e) It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of any exclusive right within the meaning of Section 308(a) of the Federal Aviation Act of 1958 (49 U.S.C. Section 1349). (f) There is hereby reserved to City, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Leased Premises. This public right of flight shall include the right to cause within the said airspace any noise inherent in the operation of any aircraft used for navigation or flight through the said airspace or landing at, taking off from or operating on the Airport. (g) Tenant, by accepting this Agreement, expressly agrees for itself, its successors and assigns that it will not permit any natural growth or other obstruction on the land leased hereunder above a height as determined by the application of the requirements of Part 77 of the Federal Aviation Regulations. In the event the aforesaid covenants are breached, City reserves the right to remove the offending structure or object, all of which shall be at the expense of Tenant. (h) Tenant shall not make use of the Leased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport, or which might otherwise constitute a hazard, In the event the aforesaid covenant is breached, City reserves the right to enter upon the Leased Premises and cause the abatement of such interference, at the expense of Tenant. (i) This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has, or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport, or the exclusive or nonexclusive use of the Airport, by the United States during the time of war or national emergency or otherwise. 0) Tenant shall conform to the Airport Rules and Regulations and FAA safety and security rules and regulations regarding use of the Airport operations area including runways, taxiways, aircraft aprons by vehicles, employees, customers, visitors, etc. in order to prevent security breaches and avoid aircraft incursions and vehicle/pedestrian deviations; will complete and pass an airfield safe driving instruction program when offered or required by the Airport, and will be subject to penalties as prescribed by the Airport for violations of the Airport safety and security requirements. 5.4 Airport Security, Tenant is responsible for maintaining security in and around the Leased Premises or any other area adjacent to or upon the Airport which Tenant has an exclusive right to use or which Tenant otherwise controls. Tenant is further responsible for maintaining security with respect to access to and entry upon Airport operations areas, or other areas of the Airport designated by City from time to time as security areas, by employees, subtenants, Ws contractors, invitees or customers of Tenant or any other person who enters the Airport operations areas at Tenant's invitation, direction, or authority, whether through or from the Leased Premises or otherwise. 5.5 Hazardous Materials. (a) Restrictions. Tenant shall not cause or permit any hazardous materials or toxic substances to be brought upon, kept or used in or about the Leased Premises or the Airport by Tenant, its agents, employees, contractors or invitees, without the prior written consent of City. City's consent shall not be unreasonably withheld so long as Tenant demonstrates to City's reasonable satisfaction and covenants to City that such hazardous materials or toxic substances are necessary or useful to Tenant's business and will be used, kept and stored in a manner that complies with all laws relating to any such hazardous materials or toxic substances so brought upon or used or kept in or about the Leased Premises or the Airport. If Tenant breaches the obligations stated in the preceding sentence, or if the presence of hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in contamination of the Leased Premises or the Airport, or if contamination of the Leased Premises or the Airport by hazardous materials or toxic substances otherwise occurs for which Tenant is legally liable to City for damage resulting therefrom, then Tenant shall indemnify, defend and hold City harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Leased Premises or the Airport, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Leased Premises or the Airport, damages arising from any adverse impact on marketing of space in the Airport, and sums paid in settlement of claims, actual attorneys' fees, consultant fees and expert fees), which arise during or after the term of the Agreement as a result of such contamination. This indemnification of City by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions, including regular inspections, or any clean up, remedial, removal or restoration work required or recommended by any federal, state or local governmental agency or political subdivision because of hazardous materials or toxic substances present in the soil or ground water on or under the Leased Premises and/or the Airport. The indemnity, defense and hold harmless obligations of Tenant hereunder shall survive any termination of this Agreement. Without limiting the foregoing, if the presence of any hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in any contamination of the Leased Premises or the Airport, Tenant shall promptly take all actions at its sole expense as are necessary to return the Leased Premises and the Airport to the condition existing prior to the introduction of any such hazardous materials or toxic substances; provided that, City's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions, in City's sole and absolute discretion, would not potentially have any material adverse long-term or short-term effect on the Leased Premises or the Airport. 6. OPERATING EXPENSES. 6.1 Taxes and Assessments. Tenant recognizes and understands that this Agreement may create a possessory interest subject to property taxes pursuant to Revenue & Taxation Code Section 107.6 and SZ that, if a possessory interest is created, Tenant shall, in accordance with this Section, be responsible for payment of property taxes levied against such possessory interest. Any documentary transfer tax assessed upon the creation of a leasehold interest in the Premises under this Agreement shall be paid by Tenant. Tenant hereby expressly acknowledges that City has given Tenant notice that Tenant's possessory interest in the demised premises may be taxed. Tena is initials 7. UTILITIES AND SERVICES. 7.1 Utilities. During the term of this Agreement, Tenant agrees to pay all charges and expenses in connection with utility services furnished to the Leased Premises and to protect City and the Leased Premises from all such charges and expenses. Given that the utilities are not separately metered for the Leased Premises, Tenant shall reimburse City for Tenant's pro rata share, of all shared utilities within ten (10) days after billing by City. 7.2 Tenant acknowledges that City has no obligation to provide utilities except those already furnished as of the date of this Agreement to the Premises or additional utilities. City shall not be liable to Tenant under any circumstances for damages or loss to Tenant's property, injury to person or property, or consequential damages, however occurring, through, in connection with, or incidental to failure to furnish or interruption of any utilities or services. 7.3 Tenant shall comply with all rules and regulations which City, any governmental agencies or authorities, or any utility company may establish for the use, proper functioning and protection of any such utility. REPAIRS AND MAINTENANCE. 8.1 Tenant's Obligations to Maintain and Repair. Tenant shall maintain, or cause to be maintained, the Leased Premises and every pant thereof in good order, condition and repair according to standards determined by City (whether or not such part of the Leased Premises requiring repair, or the means of repairing the same, are reasonably or readily accessible to Tenant, and whether or not the need for such repairs occurs as a result of Tenant's use, any prior use, the elements or the age of such part of the Leased Premises), including, without limiting the generality of the foregoing, (A) all buildings, structures or fixtures, including foundations, roofs, ceilings, floors, interior and exterior walls, (B) store fronts, windows, doors, hangar doors, plate glass, showcases, skylights, entrances and vestibules located within the Leased Premises, (C) automobile and aircraft pavement, driveways, landscaping, parking lots, fences and signs, and (D) all sprinkler systems, plumbing, sewers, drainage devices, electrical facilities, equipment and other utilities or facilities serving the Leased Premises. Tenant shall commence any repair within thirty (30) days after the receipt by Tenant of written notice of the need for such repair, including any notice from City. City shall not be liable to Tenant by reason of any injury to or interference with Tenant's business arising from or connected with the need for or the making of any repairs, alterations or improvements. All repairs, modifications or improvements to the Leased Premises shall be performed in accordance with the building standards of the City, and it -7- shall be the responsibility of Tenant to secure appropriate permits from the City . Tenant shall keep the exterior of the improvements on the Leased Premises in a reasonably neat and attractive condition, free from waste or debris, and replace any trees, shrubs, plants, and ground cover as may be needed. Tenant shall screen and landscape all outside storage areas and service yards of the Leased Premises with fencing and landscaping approved by City, and shall not allow any temporary structures or facilities on the Leased Premises, without City's reasonable approval. 8.2 City's Remedies. In the event Tenant fails to perform its obligations under Section 8.1, City may, pursuant to Section 14.4 of this Agreement, after fifteen (15) days' written notice to Tenant to cure such failure, enter upon the Leased Premises and put the same in good order, condition and repair, 8.3 No City Oblieations. City shall have no obligation to make any repairs to the Leased Premises other than as expressly and specifically set forth in this Agreement. Tenant hereby waives any and all rights provided in Sections 1941 through 1942, inclusive, of the Civil Code of California and hereby waives, to the extent permissible, any rights other than statutes or laws now or hereafter in effect which are contrary to the obligations of Tenant under this Agreement, or which place obligations upon City in addition to those provided in this Agreement. 8.4 City's Reservations of Rights. During the term of this Agreement, City reserves the right, in its sole discretion, to reconstruct, alter or improve the aircraft pavement areas of the Leased Premises, to such standards as it shall determine; provided, however, if such reconstruction, alteration or improvement to the aircraft pavement areas would result in a material adverse effect on Tenant's use of the Leased Premises, the parties hereto shall meet and confer prior to the commencement of such reconstruction, alteration or improvement. Tenant hereby acknowledges that City has no obligation to make such alterations or improvements. 8.5 Indemnity. Tenant shall indemnify and save harmless City against all actions, claims and damages by reason of (A) Tenant's failure to perform the terms of this Section 8, or (B) Tenant's nonobservance or nonperformance of any law, ordinance or regulation applicable to the Leased Premises, and any liability or duty to repair imposed by the laws of California. 9. PLANS AND SPECIFICATIONS; CONSTRUCTION; LIENS AND CLAIMS. 9.1 Approval of Plans. No improvement shall be erected, placed, altered or maintained on the Leased Premises unless plans and specifications have been approved in writing by City, at City's sole discretion. Prior to commencing construction of any building, structure or improvement (not including the interval layout) on the Leased Premises, Tenant shall notify City of the date of commencement and expected completion thereof and shall submit for approval plans and specifications in accordance with applicable rules and regulations of the City. 9.2 Time for Approval. Tenant shall notify City in writing when completed plans and specifications for improvements to be erected, placed or altered on the Premises have been submitted to City ("Notice"). Such plans and specifications shall be processed in accordance with the normal procedures of the City. If City does not approve the plans and specifications, it shall notify Tenant of the reasons for its disapproval, and failure to so notify Tenant shall be 10 deemed approval of the plans and specifications. By approving the plans and specifications, City does not represent or warrant that such plans and specifications comply with applicable law. Tenant shall be responsible, at Tenant's sole cost and expense, for securing all necessary governmental or quasi -governmental approvals of the plans and specifications and for securing all permits necessary to construct and operate any improvements or Approved Improvements. 9.3 Approval Delays. In the event the required approval process exceeds a period of 60 (sixty) days from the Commencement Date, or if Tenant is unable to obtain approvals necessary to use the Leased Premises for the use set forth in in this Agreement, Tenant shall have the option to terminate this Agreement in its entirety. 9.4 Commencement of Construction. Once Tenant has commenced construction, Tenant shall pursue the same with reasonable speed and dispatch in compliance with the approved plans and specifications. All construction shall be in accord with all applicable laws, ordinances and regulations. Tenant's construction shall not interfere with City's.operation of the Airport, and Tenant shall comply with all directives of City related thereto. If Tenant is prevented from completing improvements on account of strikes, lockouts, failure of contractor or subcontractors, inability to procure material or labor in the free market, governmental restrictions, fire, earthquake, the elements, or other casualty or similar extraordinary conditions beyond Tenant's reasonable control (excluding financial difficulties, economic conditions or inability to obtain governmental approvals), then the Tenant shall thereafter proceed with all reasonable speed and dispatch to complete the improvements. 9.5 Liabilities. By approving plans and specifications, City assumes no liability therefor, or for any defect resulting from the plans and specifications. Tenant indemnifies and shall hold City harmless from any damage, loss or prejudice claimed, and from all expenses incurred arising out of approvals of plans and specifications or any improvement on the Premises. Tenant hereby assigns to City all warranties and guarantees of all material suppliers, contractors and subcontractors furnishing material or labor or otherwise relating to any improvements or Approved Improvements. 9.6 Approved Buildings and Improvements. All of the improvements shown in the approved plans and specifications constitute the "Approved Improvements." Substantial modifications to Approved Improvements shall be made only with prior written approval of City, except that City's prior written approval shall not be required for changes to the interior of any building on the Leased Premises. Notwithstanding the foregoing, nothing in this Section 9.6 shall limit, alter, or waive the building and permit requirements of the City. 9.7 Notice of Work. Before commencement of any construction, alteration, addition, replacement or restoration of any building, structure or other improvement, Tenant shall (A) give to City written notice of the work to be performed, specifying the nature and location of the intended work and the expected date of commencement and completion thereof, and (B) provide City with written plans and specifications therefor, and shall have obtained the written approval thereof from the City as required above. City reserves the right at any time and from time to time to post and maintain on the Leased Premises such notices as may be necessary to protect City against liability for all such liens and claims. 50 9.8 Covenant Against Liens and Claims. Tenant shall not allow or permit to be enforced against the Leased Premises or any part thereof, any mechanic's, materialmen's, contractor's or subcontractor's liens arising from any claim growing out of work of any construction, repair, restoration, replacement or improvement, or any other claim or demand no matter how the same may arise. Tenant shall pay or cause to be paid all of said liens, claims or demands before any lawsuit is brought to enforce them against the Leased Premises. Tenant agrees to indemnify and hold the City and the Leased Premises free and harmless from all liability for any and all such liens, claims and demands, together with reasonable attorneys' fees and all costs and expenses incurred by City in connection therewith. 9.9 Tenant's Right to Contest Liens. Notwithstanding anything to the contrary set forth above, if Tenant shall in good faith contest the validity of any such lien, claim or demand, then Tenant shall, at its expense, defend itself and City against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against City or the Leased Premises. A condition to Tenant's right to contest the validity of any lien, claim or demand shall be that if City shall require, Tenant shall furnish to City evidence of a surety bond satisfactory to City in an amount at least equal to the contested lien, claim or demand, the effect of which is to indemnify City against liability for the same, and to hold the Leased Premises free from the effect of such lien or claim. 9.10 City Paving Claims. In the event Tenant shall fail to pay and discharge or cause to be paid and discharged, when due and payable, any tax, assessment or other charge upon or in connection with the Leased Premises, or any lien or claim for labor or material employed or used or any claim for damages arising out of the construction, repair, restoration, replacement, maintenance and use of the Leased Premises and any improvements thereon, or any judgment on any contested lien or claim, or any insurance premium or expense in connection with the Leased Premises and improvements, or any other claim, charge or demand which Tenant has agreed to pay or cause to be paid under the terms of this Agreement, and if Tenant, after fifteen (15) days' written notice from City to do so shall fail to pay and discharge the same, or in the event Tenant contests such tax, assessment, claim or charge and fails to post security as provided elsewhere in this Agreement, then City may, at his option, pay any such tax, assessment, insurance expense, lien, claim, charge or demand, or settle or discharge any action therefor, or judgment thereon, and all costs, expenses and other sums incurred or paid by City in connection with any of the foregoing shall be paid by Tenant to City upon demand, together with ten percent (1M) interest thereon from the date incurred or paid. Any default in such repayment by Tenant shall constitute a breach of the covenants and conditions of this Agreement. 9.11 Prevailing Wage. Tenant acknowledges that any improvements, alterations or repairs on the Leased Premises, may be subject to the payment of prevailing wage under the provisions of the California Labor Code. To the extent any such improvements, alterations, or repairs are subject to prevailing wage requirements, the following shall apply: (a) Tenant shall and shall cause its contractors and subcontractors to: pay prevailing wages in the construction of any improvements, or alterations on the Leased Premises, or any other work as those wages are determined pursuant to Labor Code Sections 1720 et seq.; to employ apprentices as required by Labor Code Sections 1777.5 et seq.; and comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, -10- 1776, 1777.5 et seq.,1810-1815 and the implementing regulations of the Department of Industrial Relations (the "DIR") for all such Labor Code sections. (b) Tenant shall indemnify, hold harmless and defend (with counsel selected by the City), to the extent permitted by applicable law, City, its councilmembers, commissioners, officials, employees and agents, against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Tenant, or its contractors or subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq., to hire apprentices in accordance with Labor Code Sections 1777.5 et seq., or to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the DIR in connection with the work performed pursuant to this Agreement. The provisions of this Section shall survive expiration or earlier termination of this Agreement. 10. REPAIR AND RESTORATION. 10.1 If during the term of this Agreement any building or improvement on the Leased Premises or any part thereof shall be damaged or destroyed by fire or other casualty, Tenant shall, at its sole cost and expense, repair or restore the same according to the original plans thereof or to such modified plans as shall be previously approved in writing by City pursuant to Section 9. If such damage or destruction occurs during the last eighteen (18) months of the Agreement term Tenant shall have no duty to repair or restore, and if Tenant elects not to repair or restore, this Agreement shall terminate and City shall receive all insurance proceeds that are attributable to those improvements that would become the property of the City pursuant to Section 15. Such work of repair or restoration shall be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be completed with diligence but not longer than one (1) year after such work is commenced, provided, however, that the time for completion of such repair and restoration shall be extended as appropriate. If insurance proceeds provided for above shall be insufficient for the purpose of such restoration and repair, or if the casualty is one not required to be insured against, then Tenant shall make up the deficiency out of its own funds. Tenant waives the provisions of Civil Code Sections 1932(2) and 1933(4) with respect to any destruction of the Leased Premises. 11. INDEMNITY. 11.1 Citv's Non -liability. City shall not be liable for any loss, damage or injury of any kind to any person or property arising from any use of the Leased Premises, or any part thereof, or caused by any defect in any building, structure or other improvement thereon or in any equipment or other facility therein, or caused by or arising from any act or omission of Tenant or any of its agents, employees, licensees or invitees, or by or from any accident on the Leased Premises or any fire or other casualty thereon, or occasioned by the failure of Tenant to maintain the Leased Premises and all improvements thereto in a safe condition, or arising from any other cause except where caused by the sole negligence or willful misconduct of City, its agents or employees. 11.2 Indemnification. To the fullest extent permitted by law, Tenant shall, at Tenant's sole expense and with counsel reasonably acceptable to City, defend, indemnify, and hold -11- harmless City and City's officers, officials, employees and agents from and against all claims, (including demands, losses, actions, causes of action, damages, liabilities, expenses, charges, assessments, fines or penalties of any kind, and costs including consultant and expert fees, costs of investigation, court costs and attorney's fees) from any cause, arising out of or relating (directly or indirectly) to this Agreement, the tenancy created under this Agreement, or the Premises, including without limitation: (a) The use or occupancy, or manner of use or occupancy, of the Leased Premises or buildings by Tenant; (b) Any act, error or omission, or negligence of Tenant or of any subtenant, invitee, guest, contractor or licensee or Tenant or any subtenant in, on, or about the Leased Premises; (c) Tenant's conducting or managing of its business; (d) Any alterations, activities, work, or things done, omitted, permitted, allowed, or suffered by Tenant in, at, or about the Leased Premises or buildings, including the violation of or failure to comply with any insurance requirements or any applicable laws, statues, ordinances, standards, rules, regulations, orders, decrees, or judgments in existence on the Commencement Date or enacted, promulgated, or issued after the date of this Agreement, and; (e) Any breach or default in performance of any obligation on Tenant's part to be performed under this Agreement, whether before or during the term of this Agreement or after its expiration or earliest termination. 11.3 This indemnification extends to and includes, without limitation, claims for: (a) Injury to any persons (including death at any time resulting from that injury); (b) Loss of, injury or damage to, or destruction of property (including loss of use at any time resulting from that loss, injury, damage, or destruction); and (c) All economic losses and consequential or resulting damage of any kind. 11.4 Tenant's indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until all claims against City involving any of the indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitations. 12. INSURANCE. 12.1 Required Insurance Coverage. Prior to commencing any work or operations under this Agreement, Tenant at its sole cost and expense and for the Term of this Agreement, all extensions thereof, shall obtain and maintain or shall cause to be obtained and maintained insurance against claims for injuries to persons or damages to property which may arise from or in connection with the activities of Tenant and its agents, employees and contractors, meeting at -12- least the minimum insurance requirements set forth in Exhibit "B", attached hereto and incorporated herein by this reference, on terms and conditions and in amounts as required by City from time to time and with insurers acceptable to City. 12.2 Tenant shall provide City with certificates of insurance or copies of all policies and such endorsements as may be required by City. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager of the City of Palm Springs ("Risk Manager"). 13. DEFAULT. 13.1 Events of Default. The occurrence of any of the following shall constitute an event of default of this Agreement on the part of the Tenant: (a) Tenant fails to make the payment of any installment of rent or other sum when due hereunder ("Monetary Default") within ten (10) days from when due. (b) Failure to perform any obligation, agreement or covenant under this Agreement ("Non -Monetary Default") and such failure continues for fifteen (15) days after written notice of such failure, or if such Non -Monetary Default cannot be cured within fifteen (15) days, Tenant has not commenced corrective action and prosecuted the same to completion with due diligence, or the Non -Monetary Default is of such a nature that it cannot be cured by any action of Tenant. (c) Failure to pay any insurance premium, lien, claim, demand, judgment or other charge provided for in this Agreement to be paid or caused to be paid by Tenant at the time and in the manner as provided for in this Agreement. (d) Failure to maintain the Leased Premises or cause the same to be maintained as provided for in this Agreement. (e) Abandonment or vacation of the Leased Premises for a continuous period in excess of thirty (30) days without payment of rent. Tenant waives any right to notice Tenant may have under Section 1951.3 of the Civil Code of the State of California, the terms of this Section 13.1 being deemed such notice to Tenant as required by said Section 1951.3. (f) Default by Tenant under the terms of any mortgage on the estate of Tenant. (g) The filing of any voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. If under applicable law, the trustee in bankruptcy or Tenant has the right to affirm this Agreement and continue to perform the obligations of Tenant hereunder, such trustee or Tenant shall, in such time period as may be permitted by the bankruptcy court having jurisdiction, cure all defaults of Tenant hereunder outstanding as of the date of the affirmance of this Agreement and provide to City such adequate assurances as may be necessary to ensure City of the continued performance of Tenant's obligations under this Agreement. -13- entitled under applicable law or at equity, City shall be entitled to recover from Tenant: (1) the worth at the time of award of the unpaid rent and other amounts which had been earned at the time of termination, (2) the worth at the time of award of the amount by which the unpaid rent and other amounts that would have been earned after the date of termination until the time of award exceeds the amount of such rent loss that Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent and other amounts for the balance of the Term after the time of award exceeds the amount of such rent loss that the Tenant proves could be reasonably avoided; and (4) any other amount and court costs necessary to compensate City for all detriment proximately caused by Tenant's failure to perform Tenant's obligations under this Agreement or which, in the ordinary course of things, would be likely to result therefrom. The "worth at the time of award" as used in (3) above shall be computed by discounting such amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (I %). If this Agreement provides for any periods during the Term during which Tenant is not required to pay rent or if Tenant otherwise receives a rent concession, then upon the occurrence of an event of default, Tenant shall owe to City the full amount of such rent or value of such rent concession, plus five percent (5%) interest, calculated from the date that such rent or rent concession would have been payable. 14.4 City's Option to Cure. Notwithstanding the foregoing, if Tenant fails to provide necessary repair and maintenance of the Premises and all improvements thereon, City shall have the right but not the obligation, after notice provided, and failure of Tenant to cure or commence and diligently pursue a cure to such default, to enter the Leased Premises and take all corrective action necessary in the sole judgment of City. Any such entry shall be at the sole risk and expense of Tenant. Tenant shall immediately, upon presentation of a statement therefor, reimburse City for all costs incurred by City in taking such corrective action with interest on said sums from the date of payment by City at the lower of: (A) the highest rate allowed by law; or (B) two points over the prime rate charged from time to time by the Bank of America, or if the Bank of America no longer exists, an equivalent institution. Nothing in this Section shall: (i) require City to take any corrective action on the Leased Premises; (ii) diminish the rights and remedies of City under this Agreement, whether or not City elects to take such corrective action; and (iii) cause a waiver by City of any of its rights and remedies under this Agreement. Any such reentry shall be allowed by Tenant without hindrance, and City shall not be liable in damages for any such reentry, or be guilty of trespass or forcible entry. 14.5 Remedies Cumulative. All of City's rights, privileges and elections or remedies are cumulative and not alternative, to the extent permitted by law and except as otherwise provided herein. 14.6 Replacement of Statutory Notice Requirements. When this Agreement requires service of a notice, that notice shall replace rather than supplement any equivalent or similar statutory notice, including any notice required by California Code of Civil Procedure Section 1161 or any similar or successor statute. When a statute requires service of a notice in a particular manner, service of that notice (or a similar notice required by this Agreement) in the manner required by this Section shall replace and satisfy the statutory service -of -notice procedures, including those required by California Code of Civil Procedure Section 1162 or any similar or successor statute. -15- 15. SURRENDER OF LEASED PREMISES 15.1 Vacation. Upon expiration or termination of this Agreement, Tenant shall vacate and surrender possession of the Leased Premises to City. If Tenant fails to do so, City may immediately commence eviction proceedings in conformance with applicable law. 15.2 Reversion of Improvements. Unless otherwise stated herein, upon expiration or earlier termination of this Agreement, at City's option, the ownership of improvements made to the Leased Premises shall transfer and become the property of City. If City elects not to claim such property, Tenant shall remove and/or demolish any and/or all improvements (as designated by City) and return the Leased Premises to its original condition and character, ordinary and reasonable wear and tear excepted. 15.3 Repair by City. In the event that Tenant fails to return the Leased Premises in good condition, City may perform any work necessary to correct deficiencies and Tenant shall be obliged to pay the balance to City. 15.4 Personal Property. Tenant shall remove all personal property upon expiration and/or termination of this Agreement. If Tenant fails to do so, City may remove and dispose of all personal property at Tenant's sole risk, cost, and expense and without any liability to City and Tenant shall be obliged to pay the balance to City. 16. ASSIGNMENT AND SUBLETTING. 16.1 Restriction of Assignment and Subletting. Tenant shall not encumber, sublease, assign or otherwise transfer this Agreement, or any right or interest hereunder, or in or to any of the improvements constructed or installed on the Leased Premises, in whole or in part, without the prior written consent of City, which may be withheld in City's sole discretion. It shall not be unreasonable for City to withhold or condition its consent based on the prospective assigneds/sublessee's financial strength, credit history or any other factor which City reasonably believes germane to a tenant's ability and willingness to perform the obligations of this Agreement. No such assignment or sublease shall release Tenant of further liability under this Agreement unless express written approval is signed by City. 16.2 Effect of Failure to Comply. Except as provided above, no encumbrance, assignment or other transfer, whether voluntary, involuntary, by operation of law, under legal process, through a receivership, bankruptcy or otherwise, shall be valid or effective without the prior written consent and approval of City. Except as provided in Section 16, if Tenant attempts to make or allow to be made any subleasing, encumbrance, assignment or other transfer except in accordance with the provisions of this Section 16, then any of the foregoing events shall be deemed a breach of the conditions and restrictions of this Agreement, and upon such breach, City may, at its option, terminate this Agreement at once by written notice, and upon such termination this Agreement shall end and be of no further force. 17. REOUIRED FAA CLAUSES. 17.1 Non -Exclusive Use. -16- (a) This Agreement and all of the provisions hereof shall be subject to whatever right the United States Government has now or may have in the future or may acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or non-exclusive use of the Airport by the United States Government during the time of war or national emergency. If any such agreement is executed, the terms and conditions of this Agreement shall be subordinate to the provisions of any agreement between City and the United States relative to the Airport. (b) It is clearly understood by Tenant that no right or privilege has been granted which would operate to prevent any person, firm, or corporation operating aircraft at the Airport from performing any services on its own aircraft with its own Employees (including but not limited to, fueling, maintenance, and repair) that it may choose to perform. (c) Nothing in this Agreement shall be construed, in any way, as City granting Tenant an exclusive right to engage in any aeronautical activity at the Airport. 17.2 Non -Discrimination. (a) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises described in this Agreement for a purpose for which a Department of Transportation ("DOT") program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such Improvements in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said legal requirements may be promulgated or amended from time to time. (b) Notwithstanding any other provision of this Agreement, during the performance of this Agreement, Tenant, for itself, its heirs, successors, and assigns, as part of the consideration of this Agreement does hereby agree, as a covenant running with the land, that: (a) no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of the Leased Premises; (b) in the construction of any Improvements on, over, or under the Leased Premises, and the furnishing of services therein or thereon, no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, or denied the benefits of, such activities, or otherwise be subjected to discrimination; (c) in the breach of any of the above nondiscrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess the Leased Premises and hold the same as if this Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 have been followed and completed, including expiration of appeal rights; (d) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby agree as a covenant running with the land that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such improvements and services in compliance with all other requirements imposed pursuant to 17- 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said Regulations may by amended. (c) Tenant will comply with pertinent statues and rules as are promulgated or amended from time to time to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from federal assistance. This provision obligates Tenant or its transferee for the period during which federal assistance is provided or is in the form of personal Property or real Property or interest therein or structures or Improvements thereon. In these cases, this provision obligates Tenant or any transferee for the longer of the following periods: (a) the period during which the Leased Premises is used by the sponsor or any transferee for a purpose for which federal assistance is extended, or for another purpose involving the provision of similar services or benefits, or (b) the period during which City or any transferee retains ownership or possession of the Leased Premises. (d) Tenant shall not discriminate in any manner against any employee or applicant for employment because of political or religious opinion or affiliation, race, creed, color, national origin, sex, age, or disability and further, Tenant shall include a similar clause in all subcontracts. Tenant agrees City has the right to take such action against Tenant as the government may direct to enforce this provision of this Agreement. 18. MISCELLANEOUS. 18.1 Compliance with Governmental Regulations. Tenant shall, at its own cost and expense, promptly and properly, comply with and execute, including the making of any alteration to the Leased Premises, all orders, regulations, laws and requirements of all governmental authorities arising from the use or occupancy of, or applicable to, the Leased Premises. 18.2 Disclaimer of Representation. Except as otherwise specifically provided herein, City has made no representations or warranties to the Tenant concerning the Leased Premises, the present use thereof or the suitability for Tenant's intended use of the property. The foregoing disclaimer includes, without limitation, topography, climate, air, water, water rights, utilities, present and future zoning, soil, subsoil, drainage, access to public roads, proposed routes of roads, or extension thereof, or effect of any state or federal environmental protection laws or regulations. Tenant represents and warrants to City that Tenant and Tenant's representatives have made or will make their own independent inspection and investigation of the Leased Premises and Tenant, in entering into this Agreement, is relying solely on such inspection and investigation. No patent or latent physical condition of Leased Premises, whether or not known or discovered, shall affect the rights of either party hereto. Any agreement, warranties or representations not expressly contained herein shall in no way bind either Tenant or City. City and Tenant waive any right of rescission and all claims for damages by reason of any statement, representations, warranty, promise and agreement, if any, not contained in this Agreement. 18.3 Priority of Agreement. This Agreement is subject and junior to all existing easements, covenants, conditions and restrictions and other matters and encumbrances of record. -18- 18.4 Inspection. City reserves the right for City and City's agents and representatives to enter upon the Leased Premises at any reasonable time upon five (5) days prior written notification for the purpose of attending to City's interest hereunder, and to inspect the Leased Premises. 18.5 Attorneys' Fees. In the event any action is brought by City to recover any rent due and unpaid hereunder or to recover possession of the Leased Premises, or in the event any action is brought by City or Tenant against the other to enforce or for the breach of any of the terms, covenants or conditions contained in this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees to be fixed by the Court, together with costs of suit therein incurred. 18.6 Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Agreement shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof. No delay or omission of City to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Tenant under this Agreement. The various rights and remedies reserved to City herein including those not specifically described in this Agreement shall be cumulative and, except as otherwise provided by California statutory law in force at the time of execution of this Agreement, City may pursue any or all of such rights and remedies whether at the same time or otherwise. 18.7 Agreement Binding Upon Successors and Assigns. Subject to the limitations on assignment and subleasing, each of the terms, covenants and conditions of this Agreement shall extend to and be binding on and inure to the benefit of not only City and Tenant, but each of their successors and assigns. Whenever in this Agreement reference is made to either City or Tenant, the reference shall be deemed to include, wherever applicable, the successors and assigns and such parties the same as if in every case expressed. 18.8 Relationship of Parties. The relationship of the parties hereto is that of City and Tenant, and it is expressly understood and agreed that City does not in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise. 18.9 Time of the Essence. Time is expressly declared to be of the essence of this Agreement. 18.10 Headings and Titles. The marginal headings or titles to the Sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. 18.11 Governing Law and Venue. This Agreement shall be deemed to have been made in, and shall be construed in, accordance with the statutes and laws of the State of California without regard to choice of law provisions that would cause the application of the law of another jurisdiction, and without regard to conflicts of law principles. Any suit, action or proceeding permitted hereunder or any judgment entered by any court in respect thereof, will be brought in the state courts sitting in Riverside County, California. -19- 18.12 Entire Agreement: Amendments. This Agreement, including the exhibits attached hereto and all documents referenced herein, all of which are incorporated herein by reference, contain the entire agreement of the parties hereto with respect to the matters covered hereby, and no other previous agreement, statement or promise made by any party hereto which is not contained herein shall be binding or valid. No amendment or modification to this Agreement shall be effective unless in writing and signed by both City and Tenant. 18.13 Force Maieure. Except as to the payment of rent, neither of the parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in any amount for any delay caused by fire, earthquake, explosion, flood, hurricane, the elements, acts of God, or the public enemy, action or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes, or lockouts or any other cause whether similar or dissimilar to the foregoing, which is beyond the control of such parties and any delay due to said causes or any of them shall not be deemed a breach of or default in the performances of this Agreement. 18.14 Sevembility. If any provision in this Agreement is held to be illegal, invalid, or unenforceable in full or in part, for any reason, by any court of competent jurisdiction, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid, and enforceable. The illegality, invalidity, or unenforceability of any such provision shall in no way affect any other provisions in this Agreement, provided that the illegality, invalidity, or unenforceability of any such provision does not materially prejudice either Party with regard to the respective rights and obligations of each Party contained in the valid terms and conditions of this Agreement. 18.15 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 18.16 Notices. Any notice to be given or other document to be delivered by either Party to the other party may be given by personal delivery, generally recognized overnight courier, prepaid, or may be deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed to the Party for whom intended as follows: To City: City of Palm Springs 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 To Tenant: The LGBTQ Community Center of the Desert 1301 N Palm Canyon Drive Palm Springs, CA 92262 Either Party hereto may from time to time by written notice to the other party designate a different address which shall be substituted for the one specified above. Notices and documents shall be served upon receipt or, if any notice or other document is sent by registered or certified mail, as provided above, the same shall be deemed served or delivered seventy-two (72) hours after the mailing thereof. -20- SIGNATURE PAGE TO AIRPORT LEASE AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND LGBTQ COMMUNITY CENTER OF THE DESERT IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. �TENANT: By: Siena Signature (2^d signatur re iced far Co nation) 'IMAUb U. Fm4-- CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: % 0 -O2N Item No. 1 . APPROVED AS TO FORM: By. 9 -,+ 3 Cify Attorney APPROVED: By: Scott Stiles City Manager A q qbq ATTEST: By: 114 D Ct C rk _21_ EXHIBIT f°A" DESCRIPTIONMEPICTION OF LEASED PREMISES [ATTACHED] 51*a MECH EXHIBIT "B" INSURANCE REQUIREMENTS Tenant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the this Agreement and shall include their agents, representatives, employees or subcontractors. With respect to General Liability, coverage should be maintained for a minimum of five (5) years after contract completion. The cost of all such insurance shall be borne by the Tenant. A. Minimum Scope of Insurance $1,000,000 per occurrence/$3,000,000 aggregate with a $2,000,000 umbrella/excess coverage-- Commercial General Liability $1,000,000 combined single limit -- Auto Liability $1,000,000 -- Worker's Compensation Insurance $2,000,000 per occurrence/aggregate -- Umbrella/Excess Liability Insurance $2,000,000 per occurrence/aggregate -- Cyber Liability One Year of Minimum Monthly Rent -- Business Interruption Insurance Coverage shall be at least as broad as: Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence and $3,000,000 aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projecttlocation (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Tenant has no owned autos, hired (Code 8) and non -owned (Code 9) autos, with limit no less than $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Property Insurance: Tenant shall provide property insurance on all personal property and betterments and improvements contained within or on the Leased Premises. Property insurance shall insure against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision. 5. Interruption of Business Insurance: Tenant shall, at its sole cost and expense, maintain business interruption insurance by which the minimum monthly rent will -23- be paid to City for a period of up to one (1) year if the premises are destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, 6. Cyber Liability Insurance, if the Tenant will provide IT services or software or involve the retention of private, non-public information about third parties, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Tenant in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. 7. Umbrella or Excess Policies Umbrella or excess liability insurance is to be excess over the Commercial General Liability, Automobile Liability and Employers' Liability Insurance. The umbrella liability or excess liability policy shall be written on an "occurrence" form with a limit of liability of Two Million Dollars ($2,000,000). The Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non- contributory, additional insured, Self -Insured Retentions (SIRS), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true "following form" or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Tenant's primary and excess liability policies are exhausted. 8. Builder's Risk Insurance shall be procured by Tenant prior to the commencement of, and throughout the duration of, any construction of improvements or betterments being installed by Tenant on the Property. B. Deductibles and Self -Insured Retentions Self -insured retentions must be declared to and approved by the City. The City may require the Tenant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. C. Other Insurance Provisions -24- 1. The general liability and automobile policies are to contain, or be endorsed to contain, the following provisions: a. The City of Palm Springs, its officers by endorsement, officials, employees and volunteers are to be covered as additional insureds with respect to: liability arising out of activities performed by, or on behalf of, Tenant, premises owned, occupied or used by the Tenant, or automobiles owned, leased, hired or borrowed by the Tenant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officer, officials, employees or volunteers. General liability coverage can be provided in the form of an endorsement to the Tenant's insurance (at least as broad as ISO Form CG 20 10, CG 1185 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). b. The Tenant's insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees and volunteers. For any claims related to this Property, the Tenant's insurance coverage shall be primary and non- contributory insurance coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, or volunteers shall be excess of the Tenant's insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. c. Any failure to comply with reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. Coverage shall state that the Tenant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers' Liability Coverage shall contain a waiver of subrogation by endorsement in favor of the City, its officials, employees, agents and contractors. 3. Builder's Risk City shall be named as a loss payee on any Builder's Risk policy to the full extent allowable and for which the City's insurable interests may appear. 4. All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after -25- thirty (30) days' prior written notice has been given to the City; except that ten (10) days' prior written notice shall apply in the event of cancellation for non-payment of premium. 5. Waiver of Subrogation Tenant hereby grants to City a waiver of subrogation which any insurer may acquire against City, its officers, officials, employees, and volunteers, from Tenant by virtue of the payment of any loss. Tenant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Tenant, its employees, agents, and subcontractors. 6. There shall be no endorsement reducing the scope of coverage required above unless approved by the City's Risk Manager. 7. If the Tenant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Tenant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. D. Acceptability of Insurers _Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than ANII. E. Verification of Coverage Tenant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Tenant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Proof of insurance shall be either emailed in pdf format to: Victoria Carpenter or mailed to the following postal address (or any subsequent email or postal address as may be directed in writing by the Risk Manager): -26- City of Palm Springs Risk Manager 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 F. Subconsultants/Subcontractors Tenant shall require and verify that all subcontractors relating to this Agreement maintain insurance meeting all the requirements stated herein, and Tenant shall ensure that City is an additional insured on insurance required from subcontractors. For COL coverage subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13. G. Review of Coverage These insurance requirements shall be subject to periodic review by City's Risk Manager. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Should the Risk Manager require any change in any coverage such change shall be communicated in writing to Tenant and Tenant shall comply with the said change within thirty (30) days following the date of receipt of the notice. -27-