HomeMy WebLinkAbout00179C - CENTER BELARDO TEXACO 395 NPC OPA LEASE TERMINATION PA1B2 _ e
Cl/PALM RIGS w x v
( P.O.SOX 2743 RESOLUTION NO. 873 R m
PALM SPRINGS,CALIFORNIA 92263-2743 cc
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OFTHE COMMUNITY REDEVELOPMENT AGENCY U.OF THE CITY OF PALM SPRINGS, CALIFORNIA, p 0 Z ��
a APPROVING THE TERMINATION OF THE OWNER lu
PARTICIPATION AGREEMENT AND LEASE W C i
n AGREEMENT BETWEEN CENTER BELARDO U
COMPANY AND THE COMMUNITY W
REDEVELOPMENT AGENCY.
---------------------
WHEREAS, the Community Redevelopment Agency (Agency) and Center Belardo Company
(CSC) entered into an Owner Participation Agreement on August 5, 1987 and a Lease
Agreement on June 15, 1988; and
WHEREAS, the purpose and intent of both agreements was for the development by CBC of
386 North Belardo and 395 North Palm Canyon Drive as a retail/restaurantloffice complex and
related improvements; and
WHEREAS, CBC is in default of Section C-Lease and/or Purchase of Parcel 2 and of the OPA
and Article 1-Term and Article 3-C-Construction Schedule/Default of the Lease Agreement;
and
WHEREAS, CBC has agreed to pay the sum of $1,300 upon the execution of the Termination
Agreement; and
WHEREAS,the Agency desires to terminate both agreements and improve the Agency-owned
Palm Canyon site with parking and a green belt area; and
NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of the City
of Palm Springs, California, as follows:
SECTION 1. The Agency approves the termination of the Owner Participation
Agreement dated August 5, 1987 and the Lease Agreement dated June
15, 1988.
SECTION 2. The Agency approves the termination of the Lease Agreement dated
June 15, 1988. Agency approves execution of term agreement by
Executive'Director in a form approved by Agency Counsel, mutually
releasing the parties from all claims.
SECTION 3. The Agency accepts consideration by CBC in the amount of $1,300
payable upon execution of the Termination Agreement in the form of a
cashier's check.
SECTION 4. This Resolution shall take effect from and after the date of its passage
and adoption.
ADOPTED this 16th day of December 1992.
AYES: Members Hodges, Lyons, Reller-Spurgin, Schlendorf and Chairman Maryanov
NOES: None
ABSENT: None
1
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
CITY OF PALM SPRINGS, CALIFORNIA
By \ " L _
Assistant Secretary Chai man
lI1.lCy,l+} l:l;lt'l'll Y TUAT 'lHE F0jtLG0jr4G IS q' ,,,,-6
REVIEWED & APPROVED
—UFRESOLUTION NO. V -j DULY ADOPTEq DY
THE CODIMIINITY REDEVELOPMrNTAGENCY OF THE CITY QE
PALM SPRINCSINA/MF.ETINC'1`HEIt1;OFHELDONTUE ,
DAY OPc7�2G eU r�7
DATED AT�ALM SPRINGS, CALIFORNIA
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Center Belardo Company
Termination OPA & lease
AGREEMENT #170
R873, 12-16-92
TERMINATION OF OWNER PARTTCIPA.TION AGREEMM
THIS TERMINATION OF OWNER PARTICIPATION AGREEMENT AND LEASE
( "Termination") is entered into this /6 day of December, 1992, by
and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic ( "Agency") , and
CENTER BELARDO COMPANY, a California limited partnership
( "Belardo") .
R E C I T A L S
A. On August 5, 1987 the parties hereto entered into that
certain Owner Participation Agreement ( "OPA") with respect to that
certain real property owned by Belardo commonly known as 386 North
Belardo Road, Palm Springs, California and more particularly
described therein ( "Property") .
B. Pursuant to the terms of the OPA, Agency and Belardo
entered into that certain Lease Agreement dated June 15, 1988
( "Lease") pursuant to which Agency leased to Belardo and Belardo
leased from Agency that certain real property commonly known as 395
North Palm Canyon Drive, Palm Springs, California and more
particularly described therein, ("Demised Premises") .
C. The parties desire to 'terminate the OPA and the Lease so
that Agency and Belardo can be released and discharged from further
performance of the OPA and the Lease provisions .
TERMS AND CONDITIONS
NOW, THEREFORE, the parties hereto agree as follows:
1. Termination of OPA and Lease. As of the date this
Termination is executed ( "Termination Date") , the OPA and the Lease
(including the option to purchase the Demised Premises set forth in
Article VI of the Lease) shall be fully and finally terminated and
Belardo waives any and all right, title and interest it may have
therein or in the Demised Premises.
2 . Consideration by Belardo. Upon the execution of this
Termination, Belardo shall pay Agency the sum of One Thousand Three
Hundred Dollars ($1,300 . 00) by way of a cashier' s check issued by
a bank insured by the Federal Deposit Insurance Corporation with
offices located in Riverside County, California.
3 . Cgnn ition of Demised Premises. Belardo represents that
notwithstanding the aforementioned Lease, Belardo has not taken
possession of the Demised Premises and, to its best knowledge,
FS113i3101A09-000d12 S4.1 12/15/92
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there has been no change in the condition of the Demised Premises
from the date of the Lease to the present date.
4. Release of Liabilitx. Agency and Belardo are hereby fully
and unconditionally released and discharged from their respective
duties and obligations arising from or connected with the
provisions of the OPA and the Lease; provided that each party
performs their respective obligations hereunder. This Termination
shall fully and finally settle all demands, charges, claims,
accounts or causes of action of any nature, including, without
limitation, both known and unknown claims and causes of action that
arise out of or in connection with the OPA and/or the Lease and
shall constitute a mutual release with respect to the OPA and the
Lease. The parties hereby waive the provisions of California Civil
Code Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
S. Representations of the Parties . Agency and Belardo
represent and warrant to the other that said party has not made any
assignment, sublease, transfer, conveyance or other disposition of
the OPA or the Lease or any interest in the OPA or the Lease or any
claim, demand, obligation, liability, action or cause of action
arising from the OPA or the Lease to any third party.
6. Miscellaneous.
a. Voluntary Agreement. The parties have read this
Termination and the mutual release contained herein and have freely
and voluntarily entered into it.
b. Attorneys' Fees. If either Agency or Belardo
commences an action against the other arising out of or in
connection with this Termination, the OPA or the Lease, the
prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees and costs, including fees and costs
incurred on appeal_
C. Successors and Assians . This Termination shall be
binding on and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns .
FSM83\0140E4-0 X24354.1 12/15/92 -2-
7N�61
IN WITNESS WHEREOF, this Termination of Lease was entered into
as of the date first written above.
ATTEST: COMMUNITY LOPMENT AGENCY OF
THE C OF PALM S NGS, a public
body corporate and is
By: r ` _ By:
ss ' ant Secretary Execu e ecto
"AGENCY"
APPROVED AS TO FORM
RUTAN & TUCKER
By:
David J. eshire, Esq.
Agency Counsel
CENTER BELARDO COMPANY, a California
limited partnership
Robert Lg:� Silb2xztT`an
General Partner
"BELARDO"
APPROVED ByTFlf C+ y O
BY RCS, No. �9c�t—
i7q�
FSIU831014064.0006124354.1 IV15192 -3-
Center Belardo Co - lease 395
N Plm Cnyn PA1B2 (formerly
Texaco Site
AGREEMENT #179
LEASE AGREEMENT R537, 6-15-88
THIS AGREEMENT, made and entered into this °' day of C ;
1988, by and between the COMMUNITY REDEVELOPMENT AGENCY of the
City of Palm Springs, California, hereinafter sometimes referred
to as ( "AGENCY" ) or ( "LESSOR" ) , and the CENTER BELARDO COMPANY, a
general partnership, hereinafter referred to as ( "LESSEE" ) .
RECITALS
A. AGENCY is the owner of the property described in detail in
Exhibit "A" , attached hereto and made a part hereof, located
in the City of Palm Springs, County of Riverside, State of
California; and
B. AGENCY wishes to Lease said property in the interest of
furthering and carrying out its public purpose; and
C. LESSEE proposes to Lease said property and to make certain
improvements on the land leased and/or demised hereunder
which improvements contemplate that the Lessee shall
construct upon the leased premises a retail/restaurant/office
development and related facilities and improvements for
sublease to others .
NOW, THEREFORE, in consideration of the rents, covenants, and
agreements contained herein and other valuable
considerations, AGENCY hereby rents, leases, and demises to
LESSEE and LESSEE hires, leases and takes from LESSOR on the
terms and conditions hereinafter set forth, that certain
tract of land in the City of Palm Springs, County of
Riverside, State of California, consisting of 19,400 square
feet, more or less, more particularly described in
description attached hereto as EXHIBIT "A" and made a part
hereof for all purposes .
ARTICLE I - TERM
The term of this Lease shall be fifty-five (55 ) years, subject to
the option of the Lessee to extend the said term for a period of
twenty (20 ) years and a further option to extend such terms or an
additional twenty (20 ) years at the end of the first twenty (20 )
year extended term. Such options shall be exercised by the Lessee
by written notice to the Lessor of such exercise thereof not later
than six months prior to the expiration date of the then existing
term. The commencement date, "effective date, " of the said . Term
shall be the first day of the calendar month next succeeding the
calendar month during which LESSEE shall obtain from the City of
Palm Springs, a building permit for the construction of the
project hereinafter described but in no event shall such Term
commence later that January 31, 1989 .
Page - 1
As used in this Lease Agreement, the words "year" and "years"
shall mean lease years , that is, twelve month periods commencing
on the effective date hereof as hereinabove defined.
ARTICLE II - IMPROVEMENTS/DESCRIPTION OF CONCESSION
LESSOR hereby grants LESSEE the right, privilege and license to
construct and thereafter develop a retail/restaurant/office
complex in accordance with plans and specifications approved by
AGENCY.
LESSEE may lease said premises as retail, restaurant, and office
spaces or any other facilities of similar nature and may provide
other services incidental thereto which are normally provided by a
retail/restaurant/office complex.
ARTICLE III - CONSTRUCTION OF IMPROVEMENTS BY LESSEE
A. General Specifications . LESSEE shall, without cost to
LESSOR, and within the time periods herein stated, construct
a retail/ restaurant/office complex.
B. Encumbrance.
1 . An encumbrance shall be confined to the leasehold
interest of LESSEE or the subleasehold interest of a
sublessee and shall not interfere in any way with
LESSOR' S interest in the land.
2 . In the event of default by LESSEE of the terms of an
encumbrance, the encumbrancer may exercise any rights set
forth in such encumbrance, provided that, before any sale
of the leasehold, whether by power of sale foreclosure,
or otherwise, the encumbrancer shall give to AGENCY
notice of the same character and duration as is required
to be given to LESSEE or such encumbrancer and/or the
laws of the State of California. Any notice of default
shall comply with the provisions of Section 2924c of
the Civil Code of the State of California.
3 . If any sale under the encumbrance occurs, whether by
power of sale foreclosure, or otherwise, the purchaser at
such sale shall succeed to all of the rights, title and
interest of the LESSEE in the leasehold estate covered by
said encumbrance. It is further agreed that, if the
purchaser at such sale is the encumbrancer, the
encumbrancer may sell and assign the leasehold interest
without any further consent, provided that, the
assignee shall agree in writing, to be bound by all the
terms and conditions of this Lease. If the encumbrancer
is the purchaser, it shall be required to perform this
Lease only so long as it retains title thereto. If a
sale under the encumbrance occurs, and the purchaser is a
Page - 2
c:
party other than the encumbrancer, said purchaser, as
successor in interest to the LESSEE, shall be bound by
all the terms and conditions of this Lease.
4 . If after notice of such sale the defaults or any of them
shall continue, LESSOR may correct such defaults at any
time prior to the time of sale and may terminate such
leasehold upon paying to the encumbrancer, the balance of
the encumbrance, as hereinafter defined.
5 . "Balance of Encumbrance" shall mean the amount of
principal remaining unpaid on a note secured by a trust
deed or mortgage of an interest in this Lease; provided
that, to such principal shall be added, accrued interest
thereon past due and expenses incurred by the lender in
connection with foreclosure of such trust deed, or
mortgage and note together with all necessary
expenditures made by the lender to maintain said
leasehold interest valid and in good standing during the
process of foreclosure, including, but not limited to,
fire insurance premiums, title insurance expenses,
recording fees, appraisal fees, attorney' s fees, credit
reports and any tax reporting services an
additional expenditures paid by the lender on additions,
betterments and rehabilitation of improvements on the
property encumbered pursuant to plans approved by AGENCY,
and other expenses necessary to place the improvements in
marketable condition, such adjusted principal to be paid
in cash, or at the option of AGENCY, amortized over the
term and in accordance with the schedule set forth in
said note, the interest rate on the unpaid balance
thereto to be the same rate as is set forth in said note.
6 . LESSOR agrees that it will not terminate this Lease
because of any default or breach hereunder on the part of
LESSEE if the Encumbrancer under the trust deed, within
ninety (90 ) days after service of written notice on the
Encumbrancer by LESSOR of its intention to terminate this
Lease for such default or breach, shall:
6 . 1 Cure such default or breach if the same can be
cured by the payment or expenditure of money
provided to be paid under the terms of this Lease;
provided, however, that for the purpose of the
foregoing, the Encumbrancer shall not be required
to pay money to cure the bankruptcy or insolvency
of LESSEE; or
6 .2 If such default or breach is not so curable,
cause the trustee under the trust deed to commence,
and thereafter diligently to pursue to completion
steps and proceedings for judicial foreclosure,
exercise the power of sale under and pursuant to
Page - 3
the trust deed in the manner provided by law, or
accept from LESSEE an assignment in lieu of
foreclosure, and keep and perform all of the
covenants and conditions of this Lease
requiring the payment or expenditure of money by
LESSEE until such time as said leasehold shall be
sold upon foreclosure pursuant to the trust deed,
be released or reconveyed thereunder, be sold upon
Judicial foreclosure or be transferred by deed in
lieu of foreclosure.
C. Construction Schedule/Default.
1 . Following final Agency approval of this Lease, and within
ninety ( 90) days following the issue to LESSEE of a
building permit for the project, LESSEE shall commence
construction on the retail/restaurant/office complex
hereinabove referred to, and shall cause the completion
of such construction within eighteen ( 18 ) months from the
date of such commencement, subject to delays caused by
force majeur, unavailability of materials, general
strike, war or any other cause beyond the control of
LESSEE.
2 . In the event that LESSEE shall fail to complete such
construction within the above-stated time period, and
such failure shall continue for more than ninety ( 90)
days after notice thereof in writing from LESSOR, unless
LESSEE will have commenced with due diligence and
dispatch the curing of such default, LESSOR may, at
the expiration of such ninety (90 ) day period, serve
written notice of termination of this Lease, and the
Lease shall be deemed to have been terminated on the date
of termination recited in such notice which date shall be
not less than ten ( 10) days from the date of service
thereof on LESSEE; provided, however, that any
encumbrancers of the leasehold of LESSEE shall have
the right to cure such default on the part of LESSEE,
whereupon the Lease shall remain and continue in full
force and effect.
3 . Prior to the commencement of construction on the Lease
Property, or any repair of or alteration thereto,
LESSEE shall give LESSOR written notice of LESSEE 'S
intention to do such work not less than ten ( 10 ) days
prior to commencement thereof so as to give LESSOR
sufficient time within which to post and record notices
of non-responsibility as provided by the laws of the
State of California pertaining to mechanics ' liens .
4 . Upon completion of construction, LESSEE shall furnish
certificates of completion to LESSOR.
Page - 4
0
5 . All fixed improvements made to and placed upon the
premises, are and shall remain, the property of LESSEE
so long as this Lease Agreement is in full force and
effect and shall become the property of AGENCY at
such time as this Lease Agreement is terminated as
provided herein. Furniture, furnishings, and equipment,
not including heat and air conditioning equipment, will
remain the personal property of the LESSEE and may be
removed by LESSEE upon termination of this Agreement. It
is specifically understood and agreed that upon such
removal the LESSEE shall restore the space and all fixed
improvements to original condition, ordinary wear and
tear excepted.
ARTICLE IV - OBLIGATIONS OF LESSEE
A. LESSEE agrees that it will use reasonable efforts to maintain
and manage the retail/restaurant/office complex and all
facilities connected therewith in a first class manner
comparable to other first class commercial complexes
providing similar facilities and services during the entire
term of this Lease Agreement.
At all times during the term of this Lease, LESSEE shall
maintain adequate and experienced management of the
premises . All of LESSEE 'S employees therein, shall be
reputable and of good character.
B. In the management of the premises, LESSEE, its employees,
agents or servants shall at all times comply with the laws and
regulations of the United States of America, the State of
California and all applicable ordinances, codes, and
regulation of the City of Palm Springs, as they now exist or
as they may hereafter be lawfully amended. Violations thereof
by LESSEE, its agents, servants or employees, or revocation of
permits or licenses required of LESSEE in the performance of
this Agreement, shall be cause for termination of this Lease
Agreement, at the option of the LESSOR, if not corrected
within ninety ( 90) days after written notice as hereafter
provided.
C. As provided in the plans and specification, LESSEE shall
provide a complete and proper area for the adequate sanitary
handling and disposal of all trash, garbage, and other refuse
caused as a result of the operations of its tenants .
D. LESSEE shall bear all costs incurred related to the management
of the retail/restaurant/office complex and related services .
LESSEE agrees, at no expense to LESSOR, to cause the premises
and improvements, including automobile parking facilities and
landscaping, to be maintained in a first class condition
consistent with good business practices and to assure that
Page - 5
the building and grounds present an attractive appearance.
E. All signs to be placed on the exterior of any improvements
located on the premises are subject to approval by the Palm
Springs Planning Commission and shall comply with the Palm
Springs Sign Ordinance.
F. Nothing contained in this Lease shall be interpreted to mean
that LESSEE is obligated to operate or conduct any business in
the demised premises other than that of managing and operating
the Property.
ARTICLE V - RENTAL
A. During the construction period contemplated under Article III
hereof, the LESSEE shall pay the LESSOR the following rental :
The sum of $2, 632 . 50 per month ( "Base Rate" ) for the period
commencing on the effective date of this Lease Agreement and
continuing through the third year following the effective date
of this Agreement.
At the start of the fourth, fifth, and sixth years the monthly
installments shall be adjusted to an amount equal to the Base
Rate plus an amount equal to that percentage of the said Base
Rate which is equal to the percentage of increase in the
Consumer Price Index for Los Angeles/Anaheim/Riverside area,
over the said Index published for the effective date of the
term hereof, but in no case shall the monthly installment for
the fourth year exceed $3, 027 . 38, $3, 159 . 00 for the fifth
year, and $3,290 . 62 for the sixth year.
Commencing the first month of the seventh year the monthly
rental shall be Five Thousand Five Hundred Dollars ( $5, 500 . 00 )
for twelve months . Thereafter, commencing the first month of
the eighth year, the monthly rental shall be adjusted annually
by the full percentage increase in said Consumer Price Index
over and above the said index posted for the first month of
the previous year.
The Cost of Living Index is that reflected by the Consumer
Price Index, all items, Los Angeles/Anaheim/Riverside ( 1982-84
= 100) published by the Bureau of Labor Statistics of the U. S .
Department of Labor. If, for any reason whatsoever, there is
any change in the method of calculation or formulation of said
price index, or if that index shall be no longer published,
then another index generally recognized as authoritative shall
be substituted by agreement. In any event, the base used by
any new index shall be reconciled to the 1982 - 84 index.
LESSEE shall have the right to defer any Lease Payment due and
payable during construction. The deferred amount shall accrue
interest at the rate of nine percent ( 9%) per annum and all
deferred Lease Payments and accrued interest shall be due and
Page - 6
payable at the option of LESSEE, on or before such time as the
LESSEE will have negotiated, consummated, and received, the
proceeds from a permanent loan secured by the project. In any
event, however, payment of all deferred Lease Payments and
accrued interest shall be due and payable, at the option of
LESSEE, on or before Thirty-Six (36) months from January 31,
1989 .
ARTICLE VI - OPTION TO PURCHASE
In further consideration of this Lease, LESSEE shall have the
first and prior option to purchase the property, which is demised
hereunder on the following terms and conditions :
A. At any time during the first five years of the terra of this
Lease at the price of Three Hundred Fifty One Thousand Dollars
($351, 000 . 00 ) . The option shall be exercised by notice in
writing from LESSEE to LESSOR that shall advise LESSOR that
LESSEE is exercising its option to purchase and has opened an
escrow with a duly licensed escrow agency or banking
institution in the City of Palm Springs, California, for
LESSEE' s purchase at the price of Three Hundred Fifty-One
Thousand Dollars ( $351, 000 . 00 ) . Said price shall be paid
through said escrow in cash upon recordation of LESSOR' s Grant
Deed conveying merchantable title of the property to LESSEE or
nominee. The instructions to such escrow holder shall provide
for consummation of the sale and closing of the escrow within
sixty ( 60) days from the opening thereof or such reasonable
additional period as may be requ=-red for completion of the
transaction on the terms herein stated. Said transaction
shall be completed prior to the first day of the sixth year of
the term of this Lease. In the event that such transaction is
not completed within such time for causes or reasons not
attributable to or caused by LESSEE or resulting from any
action of LESSEE either of commission or omission, then said
escrow shall remain open so that the parties may take
whatever procedures might be required to complete the
transaction in a timely manner on the terms hereinabove
stated.
B. At any time thereafter, during the term of this Lease, the
price shall. be determined by the following process :
The option shall be exercised by written notice from
LESSEE to LESSOR which shall state the amount of the
purchase price which LESSEE deems to be the reasonable
value of the land only. Within twenty (20 ) days
Page - 7
following receipt of such notice, LESSOR shall advise
LESSEE in writing whether or not such purchase price is
acceptable. If such price is so acceptable, the parties
shall, within, thirty ( 30 ) days after receipt by LESSEE
of LESSOR's response, cause the opening of an escrow
for the transfer of the property as set forth in
Section VI A. of this Agreement except for the amount of
the purchase price.
If LESSOR shall not agree to sell the land at LESSEE 's
price, LESSOR shall state a price acceptable to it. If
LESSEE does not agree to LESSOR's price, the parties
shall have a period of thirty (30) days from the date of
LESSEE' s receipt of LESSOR' s response within which to
negotiate a purchase price. If they shall fail to agree
upon a purchase price within such time, they shall each
obtain an appraisal . Each appraisal shall be completed
within sixty ( 60 ) days following after the thirty ( 30 )
day period, and shall be prepared by an independent real
estate appraiser, qualified and competent to appraise
real property in about Palm Springs, California. The
purchase price shall be the average of the two
appraisals . The parties shall cause the opening of
escrow within thirty (30) days thereafter on the terms
and conditions set forth above, except for the purchase
price.
ARTICLE VII - HOLD HARMLESS
LESSEE agrees to indemnify, defend and save AGENCY, its agents and
employees, harmless from any and all liability, claims, damages or
injuries to any person, including injury to LESSEE ' s employees and
all claims which arise from, or are connected with the performance
of, or failure to perform, the work or other obligations of this
Agreement, or are caused or claim to be caused by the acts or
omissions of LESSEE, its agents or employees, and all expenses of
investigating and defending against same; provided, however, that
this ARTICLE VII shall not include any claim arising from the sole
negligence or willful misconduct of the AGENCY, its agents or
employees .
ARTICLE VIII - INSURANCE
A. During the entire term of this Agreement, LESSEE agrees to
procure and maintain public liability insurance, at its sole
expense, to protect against loss from liability imposed by
law for damages on account of bodily injury, death or
property damage suffered or alleged to be suffered by any
person in, on or about the demised premises from any act or
activities of LESSOR or LESSEE, its sublessee or any person
acting for AGENCY or LESSEE or under its control or
direction. Such public liability and property damage
insurance shall also provide for and protect LESSOR against
incurring any legal cost in defending claims for any alleged
Page - 8
loss . Such public liability and property damage insurance
shall be maintained in full force and effect throughout the
term of this Lease in the following minimum limits :
Bodily Injury: $ 500, 000 each person
$1, 000, 000 each occurrence
Property Damage: $ 500, 000 each occurrence
500, 000 aggregate
A combined single limit policy with aggregate limits in the
amount of $1, 000, 000 will be considered equivalent to the
required minimum limits .
All of such insurance shall be primary insurance and shall
name LESSOR as an additional insured.
If the operation under this Agreement results in an increased
or decreased risk in the opinion of the Executive Director of
AGENCY then LESSEE agrees that the minimum limits
hereinabove designated shall be changed accordingly upon
request of the Executive Director; provided, however, that
the LESSEE may appeal to the AGENCY Board of Directors within
ten ( 10) days after any increase is requested and such
requirement for increased coverage shall be subject to
determination by the AGENCY Board of Directors .
LESSEE agrees that provisions of this paragraph as to
maintenance of insurance shall not be construed as limiting
in any way the extent to which LESSEE may be held responsible
for the payment of damages to persons or property resulting
from LESSEE' S activities, the activities of its Sublessees,
or the activities of any person or persons for which LESSEE
is otherwise responsible.
B. FIRE & EXTENDED COVERAGE INSURANCE
LESSEE also agrees to procure and maintain, at its sole
expense, during the term of this Agreement, and any extension
thereof, a policy of fire, extended coverage and vandalism
insurance on all permanent property of LESSEE of an insurable
nature located upon the leased premises . Said policy shall
be in an amount sufficient to cover at least eighty percent
( 80% ) of the replacement costs of said property and shall
provide for removal of debris following destruction. Such
insurance policies may contain such mortgagee's loss payable
clause as may be required by any encumbrance of the
leasehold.
C. INCREASE OF COVERAGE
LESSEE agrees to increase the limits of liability when, in
the opinion of the Executive Director, the value of the
improvements covered is increased, subject to the
Page - 9
K�3
availability of such insurance at the increased limits;
provided, however, that the LESSEE may appeal to the AGENCY
Board of Directors within 10 days after any increase is
requested and such requirement for increased coverage shall
be subject to determination by the AGENCY Board of
Directors .
D. WASTE, DAMAGE OR DESTRUCTION
LESSEE agrees to give notice to AGENCY of any fire or other
damage that may occur on the leased premises within ten ( 10)
days of such fire or damage. LESSEE agrees not to commit or
suffer to be committed, any waste or injury or any public or
private nuisance, to keep the premises clean and clear of
refuse and obstruction, and to dispose of all garbage, trash
and rubbish in a manner satisfactory to AGENCY. If leased
premises shall be damaged by any cause which results in the
premises becoming unsafe, unhealthy and unsanitary, LESSEE
agrees to make or cause to be made full repair of said damage
and to restore the premises to the condition which existed
prior to said damage, or LESSEE agrees to clear and remove
from the leased premises all debris resulting from said
damage and rebuild the premises in accordance with plans and
specifications previously submitted to the AGENCY and
approved in writing in order to restore the demised premises
to tenantable condition.
LESSEE agrees that preliminary steps toward performing such
repairs, restoration or replacement of the premises shall be
commenced by LESSEE within the later of thirty ( 30 ) days
after occurrence of such damage or destruction or thirty (30 )
days after receipt of LESSOR' s approval of plans and
specifications should such be required. In the event that a
building permit might be required under law for making such
repairs or restoration, the said thirty (30) day period
shall commence said date of issue thereof. The required
repairs, restoration or replacement shall be completed within
a reasonable time thereafter, and AGENCY shall allow an
equitable deduction in the rent requirement for such period
or period during which said premises are untenantable by
reason of such damage and repairs .
E . EVIDENCE OF INSURANCE
A Certificate of Insurance, or an appropriate insurance
binder, evidencing the above insurance coverage with a company
having a B+ rating or better shall be submitted to the AGENCY
prior to execution of this Agreement.
F. NOTICE TO AGENCY, INSURANCE COVERAGE CHANGE
The terms of the insurance policy or policies issued to
provide the above insurance coverage shall provide that said
insurance may not be amended or cancelled by the carrier, for
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non-payment of premiums or otherwise, without thirty (30) days
prior written notice of amendment or cancellation to the
AGENCY. In the event the said insurance is cancelled, the
LESSEE shall, prior to the cancellation date, submit to the
AGENCY evidence of new insurance in the amounts hereinabove
provided.
ARTICLE IX - TERMINATION BY LESSEE
In addition to all other remedies available to LESSEE, this
Agreement shall be subject to cancellation by LESSEE
should any one or more of the following events occur:
A. The issuance by any court of competent jurisdiction of a
permanent injunction in any way preventing the use of the
leased premises for the purpose hereinbefore enumerated.
B. The breach by LESSOR of any of the terms, covenants or
conditions of this Agreement to be kept, performed and
observed by LESSOR, and the failure of LESSOR to remedy, or to
commence action to remedy such breach within thirty (30) days
after written notice from LESSEE of the existence of such
breach.
ARTICLE X - TERMINATION BY LESSOR
A. In addition to all other remedies available to LESSOR, this
Agreement shall be subject to cancellation by LESSOR should
any one or more of the following exist:
1 . If LESSEE shall file voluntary petition of
bankruptcy, or if proceedings in bankruptcy shall be
instituted against it and it is thereafter
adjudicated a bankrupt pursuant to such proceedings;
or if a court shall take jurisdiction of LESSEE and
its assets pursuant to proceedings brought under the
provisions of any Federal reorganization act; or if
a receiver for LESSEE' s assets is appointed by a
Court of competent jurisdiction; or if LESSEE shall
be divested of its rights, powers and privileges
under this Agreement by other operation of law.
2 . If LESSEE shall abandon and discontinue the
conduct and operation of said
retail/restaurant/office complex for a period of six
( 6) months or more.
3 . If LESSEE shall default in or fail to make any
payments at the times and in the amounts as
required of it pursuant to this Agreement.
4 . If LESSEE shall fail to perform, keep and observe
all of the covenants and conditions contained in
this Agreement to be performed, kept and observed by
it within the time period provided in each case or
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any extended period allowed or agreed upon by the
parties .
5 . If LESSEE shall fail to abide to all applicable
laws, ordinances and rules and regulations of the
United States, State of California or the City of
Palm Springs .
B. Upon the happening of any of the contingencies recited in
subparagraph "A" above, LESSOR shall give written notice to
LESSEE to correct or cure such default, failure to perform, or
breach and, if within ninety ( 90) days from date of such
notice, the default, failure to perform, or breach complained
of shall not have been corrected in a manner satisfactory to
LESSOR, then LESSOR shall have the right, at once and without
further notice to LESSEE, to declare this Agreement terminated
and to enter upon and take full possession of the leased
premises and; provided, further, that upon the happening of
any one of the contingencies enumerated in subsection "Al"
above this Agreement shall be deemed to be breached by LESSEE
and, thereupon without entry or other action by LESSOR the
Agreement shall terminate subject to being reinstated only if
such involuntary Bankruptcy or insolvency proceedings
petitions for reorganization, trusteeship, receivership, or
other legal act divesting LESSEE of its rights under this
Agreement shall be denied, set aside, vacated or terminated in
the LESSEE' s favor within ninety (90 ) days from the happening
of the contingency. Upon the happening of said latter events,
this Agreement shall be reinstated as if there had been no
breach occasioned by the happening of said contingencies,
provided that LESSEE shall, within ten ( 10 ) days after the
final denial, vacating or setting aside of such petition, or
the vacating, terminating or setting aside of such
appointment, pay or discharge any and all sums of money which
may have become due under this Agreement in the interim and
then remaining unpaid and shall likewise fully perform and
discharge all other obligations which may have accrued and
become payable in the interim.
C. LESSOR shall give written notice of such termination to said
LESSEE if defaults have not been cured within said ninety (90)
days and the Lease shall terminate. The acceptance of rentals
and fees by LESSOR for any period after a default of any of
the terms, covenants, and conditions herein contained to be
performed, kept and observed by LESSEE shall not be deemed a
waiver of any rights on the part of the LESSOR to cancel this
Lease for failure by LESSEE to so perform, keep or observe any
of the other terms, covenants or conditions hereof to be
performed, and kept and observed. No waiver by the LESSOR of
any of the terms of this Agreement to be kept, performed and
observed by the LESSEE shall be construed to be or act as a
waiver by the LESSOR of any subsequent default on the part of
the LESSEE .
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ARTICLE XI - ASSIGNMENT OPTIONS TO TERMINATE
The privileges contained herein are personal . Exceptions only by
way of mortgage, deed of trust or assignment of rentals embodied
therein, LESSEE agrees that it will not assign this Lease
Agreement or any portion thereof, or any improvements thereon,
including, but not limited to, building or facilities constructed
on the premises without the express consent of the LESSOR in
writing. Any purported assignment or violation hereof shall be
considered null and void. LESSOR will not be unnecessarily
arbitrary in granting said consent, but LESSOR shall be the sole
judge as to the reliability, capability, character and
desirability of the parties involved until construction of all
improvements is completed. Thereafter, LESSOR agrees that it will
not unreasonably withhold its consent. The subletting by LESSEE
of individual spaces in the building to be constructed on the
demised property shall not be deemed to be subject to the terms
and provisions of this paragraph.
ARTICLE XII- RIGHT OF INSPECTION
The Redevelopment Director and/or his duly authorized
representatives shall have, at reasonable hours, the full and
unrestricted right to enter the premises for the purpose of
inspecting such premises and of doing any and all things with
reference thereto, which the LESSOR is obligated or authorized to
do under the terms and provisions hereof.
ARITCLE XIII - HOLDING OVER
In the event LESSEE shall hold over and remain in possession of
the premises herein leased after expiration of this Agreement
without any written renewal thereof, such holding over shall not
be deemed to operate as a renewal or extension of this Agreement,
but shall only create a tenancy from month-to-month at the rate of
monthly rental paid by LESSEE for the last month of the term of
this Agreement. Such month-to-month tenancy may be terminated at
any time by the LESSOR.
ARTICLE XIV - MAINTENANCE - ALTERATIONS AND REPAIRS
A. LESSEE shall at all times keep the premises and all LESSEE's
fixtures, equipment and personal property in a clean and
orderly condition and appearance. LESSEE agrees that, at its '
own expense to keep the surrounding garden, walks and lawn in
good condition.
B. LESSEE shall repair, replace, rebuild and repaint all or any
part of the premises which may be damaged or destroyed by the
acts or omissions of LESSEE, sublessees or by those of its
officers, employees, guests, invitees or of other persons on
or at the premises with consent of LESSEE .
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C. LESSEE shall take care of the premises and all parts thereof
at all times during the term of this Agreement and at the
expiration or termination hereof, the premises shall be in as
good condition as at the time of completed construction or
installation, except for reasonable wear. The premises and
all parts thereof shall include, but not be limited to, such
of the following as are or may be located or installed in or
on the premises during the term of this Agreement: Fencing,
the exterior and interior of the building walls, the exterior
and interior and operating mechanism of and attachments to
windows and skylights, screens, roofs, foundations, steel
work, columns; the exterior and interior and operating
mechanism of and attachments to doors, partitions, floors,
ceilings, inside and outside paving and unpaved area,
landscaping, glass of every kind, and the utility, mechanical,
electrical and other systems; provided, however, that nothing
contained in this paragraph shall be deemed to obligate LESSEE
to maintain or keep in repair any property belonging to any of
its subtenants on the Property.
D. LESSEE shall make frequent periodic inspections and, as the
necessity arises, regardless of the causes therefor, shall
perform all necessary preventive maintenance, including, but
not limited to, painting; make all necessary repairs and
replacements; and do all necessary rebuilding with respect to
the premises and all parts thereof (including any total
destruction) . All such maintenance, repairs, and replacement
shall be of quality substantially equal to the original in
materials and workmanship.
ARTICLE XV - ATTORNEY'S FEES
In the event of any legal action instituted by either of the
parties hereto, the prevailing party shall be entitled to recover
from the unrevealing party, reasonable attorney's fees which may
be fixed by the court.
ARTICLE XVI - TAXES
LESSEE agrees to pay or cause to be paid when due all personal
property and possessory interest taxes levied against the
property located on the demised premises and any taxes levied
against Lessee by reason of its operation of the demised premises .
In no event shall LESSOR be held liable for payment of such
taxes .
ARTICLE XVII- GENERAL PROVISIONS
A. Notices to LESSOR provided for in this Agreement shall be
mailed by certified or registered mail, postage prepaid,
addressed to the City Clerk, City of Palm Springs, Post Office
Box 1786, Palm Springs, California 92263, and notices to
LESSEE shall be mailed by certified or registered mail,
postage prepaid, address to Managing Partner, Center Belardo
Company, 9255 West Third Street, Beverly Hills, California
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U�'
90210, or other such respective address as the parties may
designate to each other from, time to time, in writing.
B. LESSEE represents that it has carefully reviewed and is
familiar with, the terms and conditions of this Agreement, and
agrees faithfully to comply with the same to the extent to
which said terms and conditions apply to its activities as
authorized and required by this instrument.
C. The term LESSOR, as used in this Agreement, means the
Community Redevelopment Agency of the City of Palm Springs and
where Agreement speaks of approval and consent by LESSOR, such
approval is understood to be manifested by an official act of
the Community Redevelopment Agency of the City of Palm
Springs, unless otherwise expressly stated in this Agreement.
D. Whenever, under this Agreement, a time is stated within which
or by which original construction, repairs or reconstruction
of said improvements shall be completed, and if during such
period a general or sympathetic strike or lockout, war or
rebellion or some other event occurs beyond LESSEE's power to
control, the period of delay so cause shall be added to the
period allowed herein for the completion of such work.
E . The parties acknowledge that the land being leased hereunder
is to be used in conjunction with adjoining land owned by
Lessee in the construction of the project above described.
ARTICLE XVIII - NON DISCRIMINATION CLAUSES
A. LESSEE shall not discriminate against any person or
class of persons by reason of race, color, creed, sex, or
national origin. Non-compliance with these provisions shall
constitute a material breach of this Agreement. In the event
of such non-compliance, AGENCY shall have the right to
judicially enforce the above provisions .
B. LESSEE shall insert the anti-discrimination provisions
hereinabove enumerated in any agreement by which said LESSEE
grants a right or privilege to any person, firm or
corporation to render accommodations and/or service to the
public on the subject premises .
ARTICLE XIX- INVALID PROVISIONS
In the event any covenant, condition, or provision herein
is found invalid by any court of competent jurisdiction, the
invalidity of any such covenant, condition or provision, is hereby
declared to be severable and the remainder of this Agreement shall
remain in full force and effect provided that the invalidity of
any such covenant, condition or provision does not materially
prejudice, either the LESSOR or LESSEE, in its respective rights
and obligations contained in the valid covenants, conditions or
provisions of this Lease.
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ARTICLE XX - HAZARDOUS WASTE
Each of the parties hereto acknowledges that the demised premises
were formerly used as an automobile service station and that
petroleum products, classified as hazardous substances, have in
the past been stored thereon, both on the surface and underground.
LESSOR has heretofore caused the removal of the underground
storage tanks . This statement shall constitute notice by each to
the other of such condition as is required under the provisions of
Section 25359 . 7 (b) of the California Health and Safety Code.
LESSOR hereby agree to save and hold harmless Lessee, each of its
partners, its mortgagees, successors and assignees against any and
all fines, penalties, or charges made or levied by any
governmental body or agency and against any and all liability,
claims, demands, actions and causes of action of any nature
whatsoever asserted by any person or entity under which such
person or entity shall seek damages for injury to person or
property resulting from or in any way arising out of the presence,
in or on the premises, of hazardous substances, the presence
whereof is the result of the usage and occupancy of the demised
premises at anytime prior to the effective date of this Lease, or
is the result of removal of, or failure to remove, pre-existing
underground storage tanks, pipelines and other appurtenances
thereof.
LESSOR shall, at LESSORS sole cost and expense, remove from the
premises soil, pipelines, or other devices which might be required
or demanded by any governmental agency to be removed as measures
for the elimination of hazardous substances, and shall make
necessary repairs in connection therewith, cleanup and
decontaminate the premises, transport and dispose of any hazardous
substances including any residual contamination in accordance with
all applicable laws, regulations, codes, and ordinances .
Furthermore, LESSOR shall reimburse LESSEE for any and all
reasonable expenses, including, without limitation, reasonable
attorney' s fees, incurred by LESSEE in connection with the defense
by Lessee of any actions based upon the presence, in or on the
premises, of hazardous substances .
None of the foregoing provisions of this paragraph shall apply to
the presence of hazardous substances brought into the premises by
LESSEE or any sub-lessee, successor or assignee of LESSEE.
As used herein, "hazardous substances" shall mean materials and
substances defined as or included in the definition of "hazardous
substances, " "hazardous wastes, " "hazardous materials" or "toxic
substances" under any applicable Federal or State Law,
regulation pertaining to industrial hygiene, or environmental
conditions .
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ARTICLE XXI - WAIVER BY LESSEE
LESSEE waives all rights under Section 1942 of the Civil Code of
the State of California, and agrees not to deduct the expenses of
any repairs from rental payable to LESSOR.
ARTICLE XXII- UTILITIES
LESSEE shall pay promptly all charges against the leased premises
billed to LESSEE for public utilities, including, but not limited
to, the electricity, waste disposal, gas, water and telephone.
ARTICLE XXIIII - HEIRS AND ASSIGNEES
Each and all of the provisions hereof shall be binding upon and
inure to the benefit of the successors and assignees of LESSOR,
and successor and assignees of LESSEE if any assignments be made
with the written consent of LESSOR.
IN WITNESS THEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers and their respective
seals to be hereto affixed the day and year first above written.
CENTER BE , ,"
E , ," � IPANY
Its :
v
ATTEST:
> / CITY OOFF PALM SPRINGS
By: ssistant Secretary Executive Director
REVIEWED AND APPROVED: \ -5544
Lease\cra2
11-21-88
12-5-88
2-9-89
53
-
2-14-89
2-21-89
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