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HomeMy WebLinkAbout2/7/2001 - STAFF REPORTS (18) DATE: February 7, 2001 TO: City Council FROM: Assistant City Manager - Admin. SUBJECT: Request for Consent to Sublease to Provide for Transfer of Tahquitz Creek Liquor License RECOMMENDATION: It is recommended that City Council approve a request for"Consent to Sublease" to allow for the transfer of the Tahquitz Creek liquor license to Central California Beverage Corporation. SUMMARY: Due to restructuring at Arnold Palmer Golf, it has become necessary to transfer the liquor license at Tahquitz Creek Golf Course from Arnold Palmer Golf Management Company to a newly created entity called Central California Beverage Corporation. To accomplish this, those two entities are proposing to enter into a Sublease,and the City Council is being asked to approve a "Consent to Sublease"to allow for this transaction. BACKGROUND: In May 1998,Arnold Palmer Golf Management Company transferred the Lease Agreement between the City and the Management Company to Arnold Palmer Golf Management,LLC. This transaction did not require City Council action because the assigmnent was to an entity that had the same officers as its predecessor, a type of assigmnent allowed without Council approval, per the Lease and Management Agreements. Recently, Peter Nanula stepped down as President and CEO of Arnold Palmer Golf Management, LLC, and his vacancy has been filled by Timothy J. Tierney. As the attached letter from Arnold Palmer Golf explains,this has caused the need to transfer the liquor license at Tahquitz Creek Golf Course from Arnold Palmer Golf Management Company to a new entity called Central California Beverage Corporation. This is part of a program to place all of Arnold Palmer operations' liquor licenses in California under the Central California Beverage Corporation. Central California Beverage Corporation is not a subsidiary of Arnold Palmer Golf Management, LLC, but a separate corporation held by Timothy J. Tierney, as sole stockholder,to be held during his tenure as President and CEO of Arnold Palmer Golf Management, LLC. Therefore,this is the type of"assigmnent"that requires City Council approval. Also attached is a Sublease Agreement which the two entities will execute, upon receiving the City's consent, to create a contractual relationship between Arnold Palmer Golf and Central California Beverage Corporation. Transfer of Tahquitz Creek Liquor License February 27, 2001 Page 2 Essentially,we will probably not see any maj or change at the Tahquitz Creek Clubhouse,and this change should not affect rents and reporting requirements. Because the City has been working with Arnold Palmer Golf and its attorneys relative to an Estoppel Certificate, Council action on this request for"Consent to Sublease"has been held in abeyance. We now believe that this is a separate issue and may be processed,even though the Estoppel Certificate issue has not been resolved as of this date. Attached is a proposed Minute Order approving the"Consent to Sublease,"which will then allow for the appropriate transfer of liquor licenses to Central California Beverage Corporation. Dallas J. Flicek, Assistant City Manager - Admin. APPRO E�� City Manager Attachments: 1. Letter, dated December 19, 2000, from Arnold Palmer Golf 2. Consent to Sublease form 3. Proposed Sublease Agreement 4. Proposed Minute Order approving the Consent to Sublease REVIEWED BY DEPT.OF FINANCE �� P CONSENT TO SUBLEASE This Consent to Sublease is entered into by and between the City of Palm Springs, a municipal corporation ("Landlord") and Arnold Palmer Golf Management Company ("Tenant") and shall be effective as of the day of 12001. WHEREAS, Landlord entered into that certain Lease Agreement dated January 2, 1995 (the "Lease") with Tenant leasing premises more particularly described in the Lease and consisting of that certain real property commonly known as the Palm Springs Municipal Golf Course located in the City of Palm Springs, County of Riverside, California(the "Golf Course"); WHEREAS, the Lease was assigned from Tenant to Arnold Palmer Golf Management LLC ("LLC Tenant") effective May 14, 1998; WHEREAS, LLC Tenant is subleasing the food and beverage operations for the Golf Course to Central California Beverage Corporation, a Delaware corporation ("Subtenant") and Landlord has agreed to consent to such sublease ("Sublease"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the parties hereto agree as follows: 1. Landlord hereby consents, pursuant to Sections 8.2 and 23.2 of the Lease to the Sublease by LLC Tenant to Subtenant of all of its right, title, and interest in and to the food and beverage operations for the Leased Premises, subject to the terms and conditions contained herein. Consent by Landlord to this Consent shall not constitute a waiver of Landlord's rights to consent to any future or further assignment, subletting, or transfer by LLC Tenant or Subtenant. Additionally, this Consent shall not constitute nor result in a release of liability of LLC Tenant of any of its obligations or responsibilities under the Lease. 2. Landlord's execution of this Consent is made in material reliance on Tenant's representation that the base rent and percentage rent collected by Landlord pursuant to Sections 8.1 and 8.2, respectively, of the Lease, shall not be affected by virtue of the Sublease. To that end, Landlord understands that for the purposes of calculating Operating Revenue under Article 9 of the Lease, Tenant shall continue to provide Landlord with reports, as required under Article 10 of the Lease, showing all money received by Subtenant for the sale of food, beverages concessions, operating supplies, equipment and other materials and services as Subtenant may provide under the Sublease (collectively "Concessions Revenue"), which Concessions Revenue shall be included in the calculation of Operating Revenue. Landlord further acknowledges that the rent received by Tenant under the Sublease shall not be counted toward the calculation of Operating Revenue in addition to the Concessions Revenue. I%q 627/014084-0001 157254,01 a02/01/01 Arnold Palmer Golf Management Co. Consent to Sublease February 7, 2001 Page 2 IN WITNESS WHEREOF, Landlord has executed this Consent effective as of the day of 2001. Owner: CITY OF PALM SPRINGS By Title: �qp3 -a. 627/014084-0001 157254.01 a02/01/01 -2- SUBLEASE AGREEMENT THIS AGREEMENT, made and entered into to be effective the_day of 20_, by and between ARNOLD PALMER GOLF MANAGEMENT LLC, a Delaware limited liability company (hereinafter referred to as "Tenant"), and CENTRAL CALIFORNIA BEVERAGE CORP., a Delaware corporation (hereinafter referred to as "Operator"), is as follows: WITNESSETH WHEREAS, Tenant is leasing, from the City of Palm Springs (the "City"), the existing facility located at 1885 Golf Club Drive, Palm Springs, California 92264, know as "Tahquitz Creek at Palm Springs'; and WHEREAS, Tenant and Operator desire to have Operator sublease, operate and manage the food and beverage operations related to said facility on Tenant's behalf and the City has consented to such sublease, NOW, THEREFORE, for and in consideration of the mutual covenants, promises, and agreements herein contained, the parties hereto agree as follows: 1. ARTICLE TERM 1.1. Term. The term of this Agreement shall be for a period of twenty (20) years, beginning on the Commencement Date, unless sooner terminated according to the provisions hereof(the"Term"). 2. ARTICLE APPOINTMENT OF OPERATOR 2.1. Management of the Club and Property. Tenant hereby retains and appoints Operator, as Tenant's exclusive agent, to supervise, manage, direct, and operate the food and beverage service operations at the Club on behalf of Tenant during the Term of this Agreement, and Operator hereby accepts said appointment upon and subject to the terms hereof. Tenant hereby delegates to Operator, subject to the terms and conditions set forth herein, the sole discretion and authority to determine operating policies and procedures, standards of operation, standards of service and maintenance, pricing, and other policies, rules, and regulations affecting the food and beverage operations of the Club, to implement all of same, A page/ N.addson,W292XSUublnrcg, /lip and to perform any act deemed by Operator to be necessary or desirable for the operation of such food and beverage services. 2.2. Use of the Property. Tenant hereby grants to Operator the exclusive use and possession of the Club during the Term of this Agreement to the extent necessary to accomplish the purposes set forth herein. During the Term of this Agreement, Tenant agrees that it may not in any event remove or prohibit Operator's use and possession of the Property or interfere with Operator's operation, except due to an Event of Default. 3. ARTICLE OPERATOR'S SERVICES 3.1. Club Food and Beverage Operations. During the Term of this Agreement, Operator shall have the duty and authority to perform any act that is necessary in the opinion of Operator to operate and manage the food and beverage operations of the Club, subject to the terms and conditions set forth herein. 3.2. Employees. Operator shall (i) determine manpower requirements, recruitment schedules, and compensation levels, (ii) furnish job descriptions, performance appraisal procedures, employee benefit programs, and operational and procedural manuals for all personnel, and (iii) establish forms and procedures for employee compensation and incentive programs. Operator shall hire, promote, discharge, and supervise all operating officers, department heads, and ancillary and supportive employees performing services in any manner related to the food and beverage operations of the Club. All such employees shall be employees of Operator. 3.3. Contracts. Operator shall negotiate, consummate, enter into, and perform, in the name of Operator, such agreements as Operator may deem necessary or advisable for the furnishing of all food, beverages, concessions, operating supplies, equipment, and other materials and services as Operator determines are needed from time to time for the management and operation of the food and beverage operations of the Club. 3.4. Licenses, Permits, and Accreditation. Operator shall apply for and use its best reasonable efforts to obtain and maintain, in Operator's name, all licenses, permits, and accreditation required in connection with the management and operation of the food and beverage operations of the Club. Tenant will cooperate with Operator in applying for, obtaining, and maintaining such licenses, permits, and accreditations. 19#qr Lease Agreement page 2 N.IMdrsan1b5292.Muhleare agr 3.5. Food and Beverage. Operator will develop food and beverage operating concepts (including operational plans, menus, wine lists, and food and beverage control systems), approve all menu items, and maintain the master recipe files. 3.6. Expenditures Required for Compliance with Law. In the event, at any time during the Tenn of this Agreement, repairs, additions, changes, or corrections in the Property of any nature shall be required by reason of any laws, ordinances, rules, or governmental regulations now or hereafter in force, or by order of any governmental or municipal power, department, agency, authority, or officer, Operator is authorized to take all steps and to make all expenditures necessary to repair and correct any such repairs, additions, changes, or corrections to the extent same affect the food and beverage operations at the Club. 3.7. Other Duties and Prerogatives. Notwithstanding anything to the contrary in this Agreement, Operator shall have the duty, obligation, responsibility, and authority to perform any act that is necessary to operate and manage the food and beverage operations of the Club during the Tenn of this Agreement. 4. ARTICLE RENT 4.1. Rent. Operator shall pay to Tenant as rent for the term hereof the sum of TWELVE MILLION ONE HUNDRED NINETY FOUR THOUSAND TWO HUNDRED FORTY DOLLARS ($ 12,194,240.00 ) in equal monthly installments of FIFTY THOUSAND EIGHT HUNDRED NINE AND 33/100 DOLLARS ($50,809.33) in advance on the first day of each month of the tern hereof. Rent for any period during the term hereof which is for less than one (1) month shall be a prorata portion of the monthly installment. Rent shall be payable without notice on demand and without any deduction, offset, or abatement, at the address stated herein, or to such other persons or at such other places as Landlord may designated in writing. 5. ARTICLE RIGHT TO CURE 5.1. Performance. If, after the expiration of any permitted grace period, either party shall have failed to cure any default in the performance of any representation, covenant, or obligation on its part to be performed, then the other party may, at any time thereafter, without further notice, perform the same for the account and at the expense of the defaulting party. Notwithstanding the above, in the case of an emergency, either party may, after notice to the other party, so perform in the other party's stead prior to the expiration of any applicable grace period; Leese Agreement page N:InrlrGsonlGS?9S.OJIsuGlenm ngr provided, however, the other party shall not be deemed in default under this Agreement. 5.2. Reimbursement. If, pursuant to this Article, either party at any time is compelled or elects (as permitted by the immediately preceding Section) (i) to pay any sum of money, (ii) to do any act which will require the payment of any sum of money, or (iii) to incur any expense (including reasonable attorneys' fees) in instituting, prosecuting, and/or defending any action or proceeding instituted by reason of the other party's failure to perform, as described in the immediately preceding Section, the sum or sums paid or payable by such party, with all interest, cost, and damages, shall be immediately due from the other upon receipt of a statement therefor. 6. ARTICLE QUIET ENJOYMENT: NONDISTURBANCE 6.1. Quiet Enjoyment. Tenant covenants that so long as there is not subsisting an Event of Default by Operator under this Agreement, Operator shall, to the extent necessary to manage the food and beverage operations and all sales and service related thereto quietly hold, occupy, possess, and enjoy the Club throughout the Term of this Agreement, free from hindrance, ejection, removal, prohibition, or disturbance by Tenant or any other party claiming under, through, or by right of Tenant. Tenant agrees to pay and discharge any payments and charges and, at its expense, prosecute all appropriate actions, judicial or otherwise, necessary to assure such free and quiet occupation. 7. ARTICLE SALE OR ASSIGNMENT 7.1. Assignment of Agreement. Except as expressly provided herein, this Agreement and any documents executed in connection herewith may not be assigned by either party. S. ARTICLE EVENTS OF DEFAULT 8.1. The occurrence of any one or more of the following events which is not cured in the time permitted shall constitute a default under this Agreement (hereinafter referred to as an"Event of Default"): 8.1.1. Failure to Pay Sums Due. Either party's failure to pay any sums payable under this Agreement when and as Lease Agreement page 4 11467 Leas W29?.OSkuhlertse ngr the same shall become due and payable and such failure shall continue for a period of fifteen (15) days after written notice (specifying the item not paid) thereof from the other party to the defaulting party. 8.1.2. Failure to Comply. Either party's failure to comply with any of the covenants, agreements, terms, or conditions contained in this Agreement and such failure shall continue for a period of thirty (30) days after written notice thereof from the other party to the defaulting party specifying in detail the nature of such failure. Notwithstanding the foregoing, in the event any failure cannot with due diligence be cured within such 30-day period, if the defaulting party proceeds promptly and diligently to cure the same and thereafter diligently prosecutes the curing of such failure, the time within which the failure may be cured shall be extended for such period as may be necessary for the defaulting party to cure the failure. 8.1.3. Bankruptcy. If either party (i) applies for or consents to the appointment of a receiver, trustee, or liquidator of itself or any of its property, (ii) is unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature, (iii)makes a general assignment for the benefit of creditors, (iv) is adjudicated a bankrupt or insolvent, or (v) files a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors, or taking advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or admits the material allegations of a petition filed against it in any proceedings under any such law, or if any action shall be taken by said party for the purpose of effecting any of the foregoing. 8.1.4. Reorganization, Receiver. An order,judgment, or decree is entered without the application, approval, or consent of either party by any court of competent jurisdiction approving a petition seeking reorganization of said party or appointing a receiver, trustee, or liquidator of said party, or of all or a substantial part of any of the assets of said party, and such order, judgment, or decree remains unstayed and in effect for a period of ninety (90) days from the date of entry thereof. Lease Agreement page Mr? N:InAdisonlL5l92 o5Uu6leme ngr 9. ARTICLE REMEDIES 9.1. Tenant's Remedies. Upon the occurrence of an Event of Default by Operator, Tenant may: 9.1.1. Seek specific performance of Operator's obligations or injunctive relief, as applicable; 9.1.2. Demand payment of all amounts due Tenant under the terms of this Agreement and demand the payment of all costs, damages, expenses, and reasonable attorneys' fees of Tenant arising due to Operator's Event of Default; 9.1.3. Proceed to remedy the Event of Default, and in connection with such remedy, Tenant may pay all expenses and employ counsel. All sums so expended or obligations incurred by Tenant in connection therewith shall be paid by Operator to Tenant, upon demand by Tenant, and on failure of such reimbursement, Tenant may, at Tenant's option, deduct all costs and expenses incurred in connection with remedying the Event of Default from the next sums becoming due to Operator from Tenant under the terms of this Agreement; and 9.1.4. Terminate this Agreement by written notice of termination to Operator. No remedy granted to Tenant is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, or by statute. No delay or omission by Tenant to exercise any right accruing upon an Event of Default shall impair Tenant's exercise of any right or shall be construed to be a waiver of any Event of Default or acquiescence thereto. 9.2. Operator's Remedies. Upon the occurrence of an Event of Default by Tenant, Operator may: 9.2.1. Seek specific performance of Tenant's obligations or injunctive relief, as applicable; 9.2.2. Demand payment of all amounts due Operator under the terms of this Agreement and demand the payment Lease Agreement page N:Inddiron165]9?ASUUGIensc ngr of all costs, damages, expenses, and reasonable attorneys' fees of Operator due to Tenant's Event of Default; 9.2.3. Proceed to remedy the Event of Default, and in connection with such remedy, Operator may pay all expenses and employ counsel. All sums so expended or obligations incurred by Operator in connection therewith shall be paid by Tenant to Operator, upon demand by Operator, and on failure of such reimbursement, Operator may, at Operator's option, deduct all costs and expenses incurred in connection with remedying the Event of Default from the next sums becoming due to Tenant from Operator under the terms of this Agreement; and 9.2.4. Terminate this Agreement by Operator's written notice of termination to Tenant. No remedy granted to Operator is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, or by statute. No delay or omission by Operator to exercise any right accruing upon an Event of Default shall impair Operator's exercise of any right or shall be construed to be a waiver of any Event of Default or acquiescence thereto. 9.3. Liti agation. In the event of any litigation under or respecting this Agreement, the prevailing party shall be entitled to attorneys' fees and court costs through all pretrial, trial, appellate, administrative, and post judgment proceedings. 10. ARTICLE TERMINATION 10.1 Events of Termination. The Term of this Agreement shall terminate on the occurrence of any of the events set forth below: 10.1.1. An Event of Default by Operator, and Tenant sends to Operator a notice of termination for cause; 10.1.2. An Event of Default by Tenant, and Operator sends to Tenant a notice of termination for cause; 10.1.3. Upon ninety(90) days written notice by Tenant to Operator; 10.1.4. Both parties agree in writing to terminate this Agreement; or Lease Agreement page19A10 N:Inrleb+anlG5292.05l9?.056ullenre agr 10.L5. Upon the expiration or termination of this Agreement according to its terms. 10.2 Payment of Sums Owed. Upon termination, all sums owed by either party to the other shall be paid within thirty(30) days of the effective date of such termination. 11. ARTICLE NOTICES 11.1 Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and (i) delivered personally, or (ii) sent by certified mail, return receipt requested, postage prepaid, addressed as shown below, or to such other address as the party concerned may substitute by written notice to the other. All notices personally delivered shall be deemed received on the date of delivery. All notices forwarded by mail shall be deemed received on a date seven (7) days (excluding Sundays and legal holidays when the U.S. mail is not delivered) immediately following date of deposit in the U.S. mail. Provided, however, the return receipt indicating the date upon which all notices were received shall be prima facie evidence that such notices were received on the date on the return receipt. If to Tenant: ARNOLD PALMER GOLF MANAGEMENT LLC Attn: General Manager 1885 Golf Club Drive Palm Springs, California 92264 With a copy to: ARNOLD PALMER GOLF MANAGEMENT LLC Attn: Timothy J. Tierney 6751 Forum Drive, Suite 200 Orlando, Florida 32821 If to Operator: CENTRAL CALIFORNIA BEVERAGE CORP. Attn: General Manager 1885 Golf Club Drive Palm Springs, California 92264 With a copy to: CENTRAL CALIFORNIA BEVERAGE CORP. Attn: Timothy J. Tierney 6751 Forum Drive, Suite 200 Orlando, Florida 32821 The addresses and addressees may be changed by giving notice of such change in the manner provided herein for giving notice. Unless and until such written notice is received, the last address and addressee given shall be deemed to continue in effect for all purposes. Lease Agreement page /fh// Mlmldisonlh5292A54uLlemc ngr 12. ARTICLE MISCELLANEOUS 12.1. Exhibits. All Exhibits attached hereto are incorporated herein by this reference as if fully set forth herein; provided, however, in the event that at the time of the execution of this Agreement any of the Exhibits to be attached are incomplete, the parties shall use their best efforts to complete such Exhibits at the earliest possible date. To the extent this Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete in accordance with this Section, except to the extent that such Exhibits are deemed and stipulated by the parties to be complete on the execution of this Agreement by the parties hereto. If any Exhibits are subsequently changed by the mutual written agreement of the parties, the Exhibits shall be modified to reflect such change or changes and initialed by the parties. 12.2. Entire Agreement. This Agreement and the Exhibits embody the entire agreement and understanding of the parties relating to the subject matter hereof and supersede all prior representations, agreements, and understandings, oral or written, relating to such subject matter. 12.3. Amendment and Waiver. This Agreement may not be amended or modified in any way except by an instrument in writing executed by all parties hereto; provided, however, either party may, in writing, (i) extend the time for performance of any of the obligations of the other, (ii)waive any inaccuracies and representations by the other contained in this Agreement, (iii)waive compliance by the other with any of the covenants contained in this Agreement, and (iv)waive the satisfaction of any condition that is precedent to the performance by the party so waiving of any of its obligations under this Agreement. 12.4. No Partnership or Joint Venture. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of (i) a partnership, or(ii) a joint venture between the parties hereto; it being understood and agreed that neither any provisions contained herein nor any acts of the parties hereto shall be deemed to create any relationship between the parties hereto other than the relationship of Tenant and operator. 12.5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives, and assigns, where permitted herein. 12.6. Severability. Except as expressly provided to the contrary herein, each section, part, term, or provision of this Agreement shall be considered severable, and if for any reason any section, part, term, or provision herein is determined to be invalid and contrary to or in conflict with any existing or future law or regulation by a court or governmental agency having valid jurisdiction, such determination shall not impair the operation of or have any other affect on other sections, parts, terms, or provisions of this Agreement as may remain otherwise intelligible, M Agreement ,Mi ddi+on1 10414%,pam :u65_91.OSlvublerts.nSr and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid sections, parts, terms, or provisions shall not be deemed to be a part of this Agreement. 12.7. Survival. All covenants, agreements, representations, and warranties made herein shall survive the execution and delivery of(i)this Agreement, and (ii) all other documents and instruments to be executed and delivered in accordance herewith, and shall continue in full force and effect. 12.8. Approvals. Any consent or approval referred to herein (by whatever words used) of either party shall not be unreasonably withheld or delayed, and neither party shall seek or obtain any payment in connection therewith as a condition therefor. Except as otherwise expressly provided herein,whenever either party has called upon the other to execute and deliver a consent or approval in accordance with the terms of this Agreement, the failure of such party to respond to the demand within fifteen (15) days after written request therefor is given in accordance with the requirements for giving notice hereunder, or such other period as specifically set forth herein, shall be deemed to be a consent or approval. In the event that either party refuses to give its consent or approval to any request by the other, such refusing party shall indicate by written notice to the other the reason for such refusal. 12.9. Construction and Interpretation of Agreement. This Agreement shall be governed by and construed under the laws of the State of California. Any action brought to enforce or interpret this Agreement shall be brought in the court of appropriate jurisdiction in the county in which the Real Property is located. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who itself or through its agent prepared the same. It is agreed and stipulated that all parties hereto have equally participated in the preparation of this Agreement and that legal counsel was consulted by each party before the execution of this Agreement. 12.10. Ca tions. Captions, titles to sections, and paragraph headings used herein are for convenience of reference and shall not be deemed to limit or alter any provision hereof. 12.11. Governing Document. This Agreement shall govern in the event of any inconsistency between this Agreement and any of the Exhibits attached hereto or any other document or instrument executed or delivered pursuant hereto or in connection herewith. 12.12. Outside Businesses. Nothing contained in this Agreement shall be construed to restrict or prevent, in any manner, any party or any party's affiliates, parent corporations, or representatives or principals from engaging in any other businesses or investments. 12.13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same Agreement. Lease Agreement page 10 /9/0�3 N:InrlAi+anlh5_9_.054uLlense ngr 12.14. Time. Time is of the essence in this Agreement and each and all of its provisions. Any extension of time granted for the performance of any duty or obligation under this Agreement shall not be considered an extension of time for the performance of any other duty or obligation under this Agreement. 12.15. Unavoidable Delays. The provisions of this Section shall be applicable if there shall occur during the Term of this Agreement any (i) strikes, lockouts, or labor disputes, (ii) inability to obtain labor or materials, or reasonable substitutes therefor, (iii) acts of God, governmental restrictions, regulations or controls, enemy or hostile governmental action, civil commotion, fire, or other casualty, or (iv) other conditions similar to those enumerated in this Section beyond the reasonable control of the party obligated to perform. If either party shall, as the result of any of the above-described events, fail punctually to perform any obligation on its part to be performed under this Agreement, then, upon written notice to the other, within ten (10) days of such event, such failure shall be excused and not be a breach of this Agreement by the party claiming an unavoidable delay(an "Unavoidable Delay"),but only to the extent occasioned by such event. If any right or option of either party to take any action under or with respect to the Term of this Agreement is conditioned upon the same being exercised within any prescribed period of time or at or before a named date, then such prescribed period of time or such named date shall be deemed to be extended or delayed, as the case may be, upon written notice, as provided above, for a time equal to the period of the Unavoidable Delay. Notwithstanding anything contained herein to the contrary, the provisions of this Section shall not be applicable to either party's obligation to pay any sums, monies, costs, charges, or expenses required to be paid pursuant to the terms of this Agreement. 12.16. No Third-Party Beneficiaries. Nothing herein contained shall be deemed to establish any rights of third parties against the parties hereto; it being the intent that the rights and obligations set forth herein are those of the parties hereto alone, with no third party beneficiary rights intended. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above. Tenant: ARNOLD PALMER GOLF MANAGEMENT LLC By: Timothy J. Tierney, President and CEO Operator: CENTRAL CALIFORNIA BEVERAGE CORP. By: Timothy J. Tierney, President and Secretary Lease Agreement page 11 ANY .9nrldison165292.a54uMeraeagr N nsr MINUTE ORDER NO. 6796 APPROVING A CONSENT TO SUBLEASE TO ALLOW THE SUBLEASING OF FOOD AND BEVERAGE OPERATIONS FOR THE PALM SPRINGS MUNICIPAL GOLF COURSE FROM ARNOLD PALMER GOLF MANAGEMENT COMPANY TO CENTRAL CALIFORNIA BEVERAGE CORPORATION ------------------ I HEREBY CERTIFY that this Minute Order, approving a Consent to Sublease of food and beverage operations for the Palm Springs Municipal Golf Course from Arnold Palmer Management Company to Central California Beverage Corporation, was adopted by the City Council of the City of Palm Sprigs, California, in a meeting thereof held on the 7th day of February, 2001. PATRICIA A. SANDERS City Clerk ray