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HomeMy WebLinkAboutA7169 - DTPS C-15 LLC - BLOCK C PUBLIC RESTROOMS Downtown Palm Springs Project "Block C" PUBLIC RESTROOMS LEASE 1. PARTIES. This Lease ("Lease"), dated as of this day of February, 2020, is made by and between DTPS C-15, LLC, a California limite liability company, (herein called "Landlord") and the City of Palm Springs, a California charter city and municipal corporation, (herein called "Tenant"). 2. PREMISES. Pursuant to Paragraph 6 of the Fourth Amendment to the Project Financing Agreement by and between Landlord's sole member, to wit, Palm Springs Promenade, LLC, a California limited liability company, and Tenant (the "Amended PFA"), Landlord does hereby lease to Tenant and Tenant hereby leases from Landlord that certain space described as PUBLIC RESTROOMS, (herein called "Premises"), containing approximately 460 SQUARE FEET of floor area, located as indicated on Exhibit "A" attached hereto and incorporated by reference herein. Said Premises are located in the City of Palm Springs, County of Riverside; State of California. As used herein, "Project" shall mean the Downtown Palm Springs Project and the land and improvements located therein, and "Building" shall mean the building constructed in the Project at the northwest corner of Tahquitz Canyon Way and North Palm Canyon Drive, identified as "Block C", in Palm Springs, in which the Premises,are located. This Lease is subject to the terms, covenants and conditions herein set forth and the Parties covenant as a material part of the consideration for this Lease, to keep and perform each and all of said terms, covenants and conditions by it td,be kept and performed. 3. USE. Tenant shall use the Premises for providing restrooms to the public and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord. 4. RENT. Tenant agrees to pay to Landlord as Minimum Rent, without notice or demand, the sum of $1.00 (ONE DOLLAR) for the lease term in advance, on or before the first day of the term of the lease. The rental shall- commence upon execution of this Lease. Said rent shall be paid to Landlord, without deduction or offset, in lawful money of the United States of America and at such place as'Landlord may from time to time designate in writing. 5. TERM AND COMMENCEMENT. The lease term shall be FIVE (5) YEARS, plus the partial month, and commences retroactively from June 14, 2019, through June 30, 2024. I. OPTIONS: Tenant is hereby granted ten (10) automatically exercised options, each for the term of five (5) years. Said options shall be exercised, at Tenant's sole discretion. Il. CANCELLATIONS: (a.) Tenant's Cancellation: In the event Tenant chooses not to exercise any automatic option, and elects to terminate this lease, Tenant shall do so in writing no earlier than six (6) months, and no later than ninety (90) days, prior 55575.18120\32448966.2 1 to the expiration of the term of the Lease, or the expiration of the term of any previously exercised option period. Unless so terminated, Tenant shall be deemed to have elected to exercise its option granted to it under subparagraph (I.), above. (b.) In the event Landlord chooses to terminate this lease as provided for herein, Landlord must do so in writing with six (6) months' notice to Tenant. 6. SECURITY DEPOSIT. No security deposit shall be required by Landlord of Tenant. 7. ADJUSTMENTS. I. Fixed Adjustments. In addition to the Rent provided in Article 4 herein- above, and commencing at the same time as any rental commences under this Lease Tenant shall pay to Landlord, within fifteen (15) days following the beginning of each month of the initial Term of this Lease and any option period thereafter, the following items herein called Adjustments: (a) Tenant shall pay a monthly payment in the sum of$2,660.00 for the janitorial services and supplies to be provided by Landlord at the Premises, including the cleaning and replenishing of soap, toilet paper and other supplies associated with restrooms ("Janitorial Fee'). Landlord shall provide inspection and replenishment of supplies, three times per day, and cleaning as needed, but in no event, no less than a daily basis. (b) Tenant shall pay a monthly payment of $350.00 for periodic repairs and replacements such as removal of graffiti, replacement of toilets, fixtures, doors, hardware, and/or items contained within the restrooms or the hallway leading to said restrooms ('Reserve Payment'). (c) On the Anniversary of every Lease Year, the Minimum Annual Janitorial Fee, ("Janitorial Fee") and Reserve Payment ('Reserve . Payment'), shall be increased by three (3%)percent of the previous year amount due. (d) If at any time, the Janitorial Fee and Reserve Payment payable to Landlord, ;becomes an insufficient amount to cover the cost of maintaining the Premises, and parties cannot agree on a reasonable amount to be paid by Tenant to Landlord for same, then Landlord may choose to terminate the management and oversight of the public restrooms. Tenant may manage the restrooms itself or hire a third-party, independent company, to maintain the restrooms and to provide all supplies, services, maintenance and repairs as otherwise .provided for under and which are included within the Janitorial Fee and Reserve Payment. If Tenant so elects, Tenant shall provide janitorial services and supplies to the Premises, which at minimum, shall meet the standards set forth on Exhibit B attached hereto ("Standard Janitorial Services"), and in such event Tenant shall not be obligated to pay the Janitorial :Fee. If Tenant does not elect to manage the. restrooms, then the parties shall terminate the Lease. 8. USES PROHIBITED. Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted use of the Premises or which will in any way increase the existing, rate of or affect any fire or other 55575.18120\32448966.2 2 insurance upon the Project or any of its contents, or cause a cancellation of any insurance policy covering said Project or any part thereof or any of its contents. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Project or injure or annoy them or use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose; nor shall Tenant cause, maintain, allow or permit any nuisance in, on or about the Premises. Tenant shall not commit or allow to be committed any nuisance and/or waste in, about or upon the Premises. The Parties hereby acknowledge and agree that the Premises, while open to the public, are surrounded by Landlord's private property and First Class retail center. Tenant is responsible for the safety and security of the Premises, as well as the entrance thereto. Tenant shall provide security services to patrol the Premises and entrance thereto to ensure that the Premises are secure at all times, including but not limited to, the hours of operation set forth below in Paragraph 23, and to ensure that no public nuisance is being caused by public patrons utilizing the Premises. All areas immediately adjacent to the Premises constitute Landlord's private property, and Tenant, Tenant's agents and/or security service are hereby authorized by Landlord to request and/or require vagrants and loiterers to leave Landlord's property. Landlord shall cooperate with Tenant in administering such authority, including, but not limited to, executing from time to time Penal Code 602 forms. Tenant shall exercise said authority and shall require vagrants and loiterers to leave the Premises and Landlord's property, to the extent permitted by law. 9. COMPLIANCE WITH LAW. Tenant shall not use the Premises, or permit anything to be done in or about the Premises, which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements of any board of fire underwriters or other similar bodies now or hereafter constituted relating to or affecting the conditions, use or occupancy of the Premises, excluding structural changes not related to or affected by Tenant's improvements or acts. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between Landlord and Tenant. 10. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow to be made any alterations, additions or improvements to or of the Premises or any part thereof without first obtaining the written consent of Landlord, and any alterations, additions or improvements to:or of said Premises, shall at once become a part of the realty and belong to Landlord and shall be surrendered with the Premises. In the event Landlord consents to the making of any alterations, additions or improvements to the Premises by Tenant, the same shall be made by Tenant at Tenant's sole cost and expense. Upon the expiration or sooner termination of the term hereof, Tenant shall, upon written demand by Landlord, given at least thirty (30) days prior to the end of the term, at Tenant's sole cost and expense, forthwith and with all due diligence, remove any alterations, additions, or improvements made,by Tenant, designated by Landlord to be removed, and Tenant at its sole cost and expense, repair any damage to the Premises caused by such removal. 55575.18120\32448966.2 3 11. REPAIRS. 11_A. By entry hereunder, Tenant shall be deemed to have accepted the Premises as being in good, sanitary and acceptable order, condition and repair. Tenant shall, at Tenant's sole cost and expense, keep the heating and air conditioning (HVAC) system in working order, condition and repair. Tenant shall pay for a service contract for maintenance of said HVAC system. Said maintenance contract to conform to the requirements under the warranty, if any, on said system. Tenant shall also be responsible for repairs and replacement of the HVAC system. Tenant shall, upon expiration or sooner termination of this lease hereof, surrender the Premises to Landlord in good, sanitary and acceptable order, condition, broom clean, ordinary wear and tear and damage from causes beyond the reasonable control of Tenant excepted. Any damage to adjacent premises caused by Tenant's use, occupation or vacation of the Premises shall be. repaired at the sole cost and expense of Tenant. 11:B. Landlord shall repair and maintain the structural portions of the Project in which the Premises are located, including the exterior wallsand roof. Landlord shall not be liable for any failure to make such repairs or to perform any maintenance unless such failure shall persist for an unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant. Except as provided in Article 21 hereof, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's use of the Premises arising from the making of any repairs, alterations, or improvements in or to any portion of the Project, Building or the Premises or in or to fixtures, appurtenances, improvements or equipment therein. 12. LIENS. Tenant shall keep the Premises and the property in which the Premises are situated free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Tenant. Landlord may require, at Landlord's sole option, that Tenant shall provide to Landlord, at Tenant's sole cost and expense, a lien and completion bond in an amount equal to one and one-half (1-1/2) times the estimated cost of any improvements, additions, or alterations in the Premises which Tenant desires to make, to insure Landlord against any liability for mechanics' and material men's liens and to insure completion of the work. 13. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any part thereof or interest therein, and shall not sublet said Premises or any part thereof or interest therein or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use said Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld. A consent to one assignment, subletting, occupation or use by any other,person shall not be deemed to be a consent to any subsequent assignment; subletting, occupation or use by another person. Consent to any such assignment, or subletting shall in no way relieve Tenant of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. 14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against and from any and all claims arising from Tenant's use of the Premises or arising from any act or 55575.18120\32448966.2 4 negligence of Tenant, or any officer, agent, employee, guest or invitee of Tenant, and from all costs, attorneys' fees, and liabilities incurred in or about the defense of any such claim or any action or proceeding brought thereon and in case any action or proceeding be brought against Landlord by reason of such claim. Tenant, upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises, from any cause other than Landlord's negligence or reckless conduct. Tenant shall give prompt notice to Landlord in case of casualty or accident in the Premises. Landlord or its agents shall not be liable for any loss, damage or injury to the property or person of any person whomsoever at any time occasioned by or arising out of any act or omission of the Tenant, or use of the Premises or any part thereof, or directly or indirectly from any state or condition of the Premises or any part during the term of this Lease. 15. SUBROGATION. As long as their respective insurers so permit, Landlord and Tenant hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage and other property insurance policies existing for the benefit of the respective parties. Each party shall apply to their insurers to obtain said waivers. Each party shall obtain any special endorsements, if required by their insurer, to evidence compliance with the aforementioned waiver. 16. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in force during the term of this Lease a policy of comprehensive public liability insurance, or shall self- insure, insuring Landlord, Property Manager (if any) and Tenant, and anyone else with an interest in the Project that Landlord reasonably designates, against any liability arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be in the amount of not less than $2,000,000 COMBINED SINGLE LIMIT OF LIABILITY FOR BODILY INJURY AND PROPERTY DAMAGE. Tenant may provide this insurance under a blanket policy, provided that said insurance shall have a Landlord's protective liability additional insured endorsement attached thereto. If Tenant shall fail to procure and maintain said insurance, Landlord may, but shall not be required to procure and maintain same, but at the expense of Tenant. Insurance required hereunder shall be in companies rated A:V or better in "Best's Key Rating Guide", and otherwise be acceptable to Landlord. Tenant shall deliver to Landlord, prior to right of entry, copies of policies of liability insurance required herein or with loss payable clauses satisfactory to Landlord. Tenant shall further provide copies of policies of liability insurance thirty (30) days prior to the expiration of said policies. No policy shall be cancelable or subject to reduction of coverage without written notice to all insured, including Landlord. All such policies shall be written as primary policies not contributing with and not in excess of coverage which Landlord may carry. 17. ENTRY BY LANDLORD. Landlord reserves, and shall at any and all times have, the right, but not the obligation, to enter the Premises to inspect the same, to repair the Premises and any portion of the Building of which the Premises are a part that Landlord may deem necessary or desirable, without abatement of rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be unreasonably blocked thereby, and further providing that the use of the Premises shall not be interfered with unreasonably. For each of the aforesaid purposes, Landlord shall at all times have and retain 55575.18120\32448966.2 5 a key with which to unlock all of the doors in, upon and about the Premises, and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency, in order to obtain entry to the Premises without liability to Tenant except for any failure to exercise due care for Tenant's property and any entry to the Premises obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. 18. TENANT'S DEFAULT. The occurrence of any one or more of the following events shall constitute a default and/or breach of this Lease by Tenant. 18.A. The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, and after, Tenant's opportunity to cure said default has expired. 18.13. The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant, where such failure shall continue for a period of ten (10) days after written notice thereof by Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than ten (10) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant expeditiously commences and diligently prosecutes such cure to completion. 19. REMEDIES IN DEFAULT. In the event of any such default and/or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default and/or breach: 19.A. Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to, the cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and 'alteration of the Premises; reasonable attorneys' fees; that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease; and (1) the worth at the time of award of the unpaid rent 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 which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and (4) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the Lease or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in subparagraphs (1) and (2) above is computed by allowing interest at the maximum lawful rate. The worth at the time of award of the amount referred to in subparagraph (3) above is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). Unpaid installments of rent or other sums shall bear interest from the date due at the maximum legal rate; or 55575.18120\32448966.2 6 19.B. Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to recover the rent and'any other charges and Adjustments as may become due hereunder;or 19.C. Pursue any other remedy now or hereafter available to Landlord under the laws or jurisdictional decisions of the state in which the Premises are located. 20. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant to Landlord specifying wherein Landlord has failed .to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for performance then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. In no event shall Tenant have the right to terminate this Lease as a result of Landlord's default and Tenant's remedies shall be limited to damages and/or injunction. 21. RECONSTRUCTION. In the. event the Premises are damaged by fire or other perils covered by extended coverage insurance, Landlord agrees to forthwith repair same, and this Lease shall remain in full force and effect, as long as the Premises may thereafter be used for its intended purposes, except that Tenant shall be entitled to a proportionate reduction of the Rent from the date of damage and while such repairs are being made, such proportionate reduction to be based upon the extent to which the damage and making of such repairs shall reasonably interfere with the business carried on by Tenant to the Premises; provided, however, if the damage is due to the fault or neglect of Tenant or its agents, employees, guests, invitees, or customers, there shall be no abatement of rent. In the event the Premises are damaged as a result of any causes other than the perils covered by fire and extended coverage insurance, the Landlord shall forthwith repair the same, provided' the extent of the destruction be less than ten percent (10%) of the then full replacement cost of the Premises. In the event the destruction of the Premises is to an extent of ten percent (10%) or more of the full replacement cost then Landlord shall have the option to (1) to repair or restore such damage, this Lease continuing in full force and effect, but only if the Premises may still be used for its intended purpose after any such damage, but the Rent to be proportionately reduced as hereinabove in this Article provided; or (2) give notice to Tenant at any time within sixty (60) days after such damage, terminating this Lease as of the date specified in such notice, which date shall be no less than fifteen (15) days after the giving of such notice. In the event of giving such notice, this Lease shall expire and all interest of Tenant in the Premises shall terminate on the date so specified in such notice and the Minimum Rent proportionately reduced, based upon.the extent, if any, to which such damage interfered with the business carried on by Tenant in the Premises, shall be paid up to the date of such termination. 22. COVENANT AGAINST DISCRIMINATION. In connection with its performance under this Agreement, Landlord shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or 55 5 75.18120\32448966.2 7 mental disability, or medical condition (each a "prohibited basis"). Landlord shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Landlord certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Landlord activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Landlord is in full compliance with the provisions of Palm Springs Municipal Code Section.7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 23. HOURS OF BUSINESS. Tenant shall only allow the Premises to be open for use by the public between the hours of 8:00 a.m. and 10:00 p.m., daily; provided, however, that this provision shall not apply if the Premises should be closed and the use of the Premises temporarily discontinued therein on account of strikes, lockouts, public health and/or safety, or similar causes. 24. GENERAL PROVISIONS. (1) Plats and Riders. Exhibits, clauses, plats, riders and addendums, if any, affixed to this Lease are a part hereof. (ii) Waiver. The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any _subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding default at the time of the acceptance of such rent. (iii) Joint Obligation. If there be more than one Tenant, the obligations hereunder imposed shall be joint and several. (iv) Marginal Headings/Captions. The marginal headings, captions and article titles to the articles of this Lease are not part of the Lease and shall have no effect upon the construction or interpretation of any part hereof. (v) Time. Time is of the essence of this Lease and each and all of its provisions in which performance is a factor. (vi) Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. (vii) Recordation. This Lease shall be recorded in the official records of Riverside County. (viii) Quiet Possession. Upon Tenant paying the rent reserved hereunder and 5557 5.1 8120\32448966.2 8 observing and performing all of the covenants, conditions and provisions on Tenant's part to,be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Lease. (ix) INTENTIONALLY OMITTED (x) Entire Agreement. This. Lease contains the entire agreement of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior or other agreements or understandings not contained herein pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be amended or added to except by . an agreement in writing signed by the parties hereto or their respective successors in interest. This Lease shall not be effective or binding on any party until fully executed by both parties hereto. (xi) Inability to Perform. This Lease and the obligations of Tenant hereunder shall not be affected or impaired because Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond the reasonable control of Landlord. (xii) Partial Invalidity. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full'force and effect. (xiii) Cumulative Rights. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity. (xiv) Choice of Law. This Lease shall be governed by the laws of the State in which the Premises are located. (xv) Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Lease, the prevailing party shall be entitled to recover the fees of ,its attorneys in. such action or proceeding in such amount as the court may adjudge reasonable as attorneys' fees. (xvi) Sale of Premises by Landlord. In the event of any.sale of the Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act; occurrence or omission occurring after the consummation of such sale; and the purchaser; at such sale or any subsequent sale of the Premises shall be deemed, without any further agreement between the parties or their successor in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of Landlord under this Lease. (xvii) Subordination, Attornment. Upon request of Landlord, Tenant will in writing, subordinate its rights hereunder to the lien of any mortgage or deed of trust, to any bank, insurance company or other lending institution, now or hereafter in force against the Premises, and to all advances made or hereafter to be made upon the security hereof. In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale 55575.18120\32448966.2 9 under any mortgage or deed of trust made by Landlord covering the Premises, Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease. The provisions of this Article to the contrary notwithstanding, and so long as Tenant is not in default hereunder, this Lease shall remain in full force and effect for the full term hereof. (xviii) Notices. All notices and demands which may or are to be required or permitted to be given by either party on the other, hereunder, shall be in writing. All notices and demands by Landlord to Tenant shall be sent by United States Mail, postage prepaid, addressed to Tenant at the Premises, and to the address hereinbelow, or to such other place as Tenant may from time to time designate in a notice to Landlord. All notices and demands by Tenant to Landlord shall be sent by United States Mail, postage prepaid, addressed to Landlord at the address set forth herein, and,to such other person or place as Landlord may from time to time designate in a notice to Tenant. To Property Manager at: GPS Asset Management, Inc. 201 N. Palm Canyon Drive, Suite 250 Palm Springs, CA 92262 To LANDLORD at: DTPS C-15, LLC c/o GRIT DEVELOPMENT 201 N. PALM CANYON DRIVE, SUITE 200 PALM SPRINGS, CA 92262 To Tenant at: CITY OF PALM SPRINGS ATTN: CITY MANAGER 3200 E. TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262 (xix) Tenant's Estoppel Statement. Tenant shall at any time and from time to time, upon not less than three (3) days prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, If modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect), and the date to which the rental and other charges are paid in advance, if any, and (b) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or "specifying such defaults -if any are claimed, and (c) setting forth the date of commencement of rents and expiration of the term hereof. Any such statement may be relied upon by the prospective purchaser or encumbrancer of all or any portion of the real property of which the Premises are a part. [CONTINUED NEXT PAGE] 55575.18120\32448966.2 10 (xx) Authority of Tenant. Each individual executing this Lease on behalf of the Tenant represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said entity, and that this Lease is binding upon Tenant. IN WITNESS WHEREOF, Landlord and Tenant have executed this Public Restroom Lease as of the day and year first above written. "LANDLORD" "TENANT" DTPS C-15, LLC, a California limited CITY OF PALM SPRINGS liability company By: By: Michael a anaging Me m er Vr' David H. Ready, Cia ager ATTEST: nti*1M City Clerk APPROVED B . 4 Z e e Ball ger, City Attorney APPROVED BY cily COUN 1L l UUdd 55575.18120\32448966.2 '�'� EXHIBIT "A" PREMISES SITE PLAN - —8ealdo oad--�-- == - 1 Canyon-0"Ilve-�- — - . LOD-Suite 0 Rest Rooms-Key Plan Fb tlm l n Y XYw w mMamum: I%M bmb0 tt➢sL 1!.NNmaux,aMletl.at PIt Onl su[ILtvl Nm lM1liam oNbV{y�firoym.IfYCWN a,C m.tl,CIR.Mtw. NNI,I Of W IYOY OtOTi OXYnM4 PO10 EnMOEOAo tvu r�ur. s0CT1 M Haim wTN V WK9¢ilI @,1,NC MO 91CM 8CIMAN6 bM I,SIMD.N➢ SPAN 0.Y NFE PPOMVF$}STEM. ?.3 gFl;l 'i 23 ei C RR 460 S.F. as c t O m _G R,I T LOD-Suite O Rest Rooms DOWNTOWN PALM SPRINGa �. PdW WIVM Wllfy GLLN SRNQ f2MF0AgG 6YL 1y10 10/J/MI) 55575.18120\32448966.2 12 EXHIBIT "B" 3`d PARTY STANDARD - JANITORIAL SERVICES Cleaning Check list Janitorial services include supplying the Premises with, and replenishing of, soap, toilet paper and other supplies associated with restrooms. Provide inspection and replenishment of supplies, a minimum of three times per day, with cleaning as needed, but no less than once a day. Cleaning to include, but not be limited to: Vacuuming, Mopping, Cleaning and Disinfecting all surfaces, including all toilets, all Counter Tops, all Sinks and all Mirrors, as well as dusting, and if need be, Graffiti Removal. If any item located within the restroom is broken or in need of repair, said item shall be replaced or repaired the same day as when it is found to be in need of repair or replacement, or within two days thereafter if the item or part is not immediately available. 5 557 5.18120\32448966.2 13 Downtown Palm Springs Project "Block C" PUBLIC RESTROOMS LEASE I. PARTIES. This Lease ("Lease"), dated as of this 13t" day of December, 2018, is made by and between DTPS C-15, LLC, a California limited liability company, (herein called "Landlord") and the City of Palm Springs, a California charter city and municipal corporation, (herein called "Tenant"). 2. PREMISES. Pursuant to Paragraph 6 of the Fourth Amendment to the Project Financing Agreement by and between Landlord's sole member, to wit, Palm Springs Promenade, LLC, a California limited liability company, and Tenant (the "Amended PFA"), Landlord does hereby lease to Tenant and Tenant hereby leases from Landlord that certain space described as PUBLIC RESTROOMS, (herein called "Premises"), containing approximately 460 SQUARE FEET of floor area, located as indicated on Exhibit "A" attached hereto and incorporated by reference herein. Said Premises are located in the City of Palm Springs, County of Riverside, State of California. As used herein, "Project" shall mean the Downtown Palm Springs Project and the land and improvements located therein, and "Building" shall mean the building constructed in the Project at the northwest corner of Tahquitz Canyon Way and North Palm Canyon Drive, identified as "Block C", in Palm Springs, in which the Premises are located. This Lease is subject to the terms, covenants and conditions herein set forth and the Parties covenant as a material part of the consideration for this Lease, to keep and perform each and all of said terms, covenants and conditions by it to be kept and performed. 3. USE. Tenant shall use the Premises for providing restrooms to the public and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord. 4. RENT. Tenant agrees to pay to Landlord as Minimum Rent, without notice or demand, the sum of $1.00 (ONE DOLLAR) for the lease term in advance, on or before the first day of the term of the lease. The rental shall commence upon execution of this Lease. Said rental shall be paid to Landlord, without deduction or offset, in lawful money of the United States of America and at such place as Landlord may from time to time designate in writing. 5. TERM AND COMMENCEMENT. The lease term shall be SIX (6) MONTHS, plus the partial month in which the rental commences. The Lease shall commence on December 14, 2018. 6. SECURITY DEPOSIT. No security deposit shall be required by Landlord of Tenant. 7. ADJUSTMENTS. I. Fixed Adjustments. In addition to the Rent provided in Article 4 herein-above, and commencing at the same time as any rental commences under this Lease Tenant shall pay to Landlord, within fifteen (15) days of the beginning of each month of the initial Term of this ORIGINAL BID AND/OR AGREEMENT Lease and any option period thereafter, the following items herein called Adjustments: (a) A monthly payment in the sum of $2,650.00 for the janitorial services and supplies to be provided by Landlord at the Premises, including the cleaning and replenishing of soap, toilet paper and other supplies associated with restrooms ("Janitorial Fee"). Landlord shall provide inspection and replenishment of supplies, three times per day, and cleaning as needed, but in no event, cleaning shall occur no less than a daily basis. (b) A monthly payment of $350.00 for periodic repairs and replacements such as removal of graffiti, replacement of toilets, fixtures, doors, hardware, and/or items contained within the restrooms or the hallway leading to said restrooms ("Reserve Payment"). (c) A monthly payment of $0.00 per month for costs to supervise, manage, account for and administer the maintenance and repairs of the Premises by Landlord. Said cost includes a fee to Landlord (or to be paid to a third party if Landlord elects) ("Management Fee"). If. Common Expense Adjustment. In addition to Rent and the Adjustments set forth above, Tenant shall monthly pay, as Additional Rent, as Tenant's entire share of Common Expenses (as defined below) in the amount of Zero and no/100 Dollars ($0.00) per square foot of Floor Area of the Premises to Landlord during the term of the Lease ("CAM Charges"). Tenant's Share of Common Expenses shall be paid by Tenant in advance in equal monthly installments at the same time and in the same manner as is provided herein for the payment of Rent. [Landlord and Tenant agree to meet and confer during the term of this Lease to negotiate a fair and reasonable amount, if any, for Common Expenses to be incorporated into an extension of the Lease.] As used in this Lease, the term "Common Expenses" means: all actual and necessary costs, expenses and obligations paid or incurred by Landlord because of or in connections with the ownership, management, repair, operation, and maintenance of the Project, including without limitation: cleaning, window washing, landscaping, lighting, heating, air conditioning, maintaining, painting, repairing, and replacing (except to the extent proceeds of insurance or condemnation awards are available) any Common Areas; the actual costs incurred by Landlord for personnel (whether employees of Landlord or third party contractors) employed in the management and operation of the Project; maintaining, repairing, replacing, cleaning, lighting, painting, and landscaping of outdoor Common Areas, including any pylon and sign; performing Landlord's duties under this Lease; providing security; seasonal holiday decorations; removing trash from the Common Areas; providing public liability, property damage and such other insurance as Landlord deems appropriate; expenses of management; marketing; total compensation and benefits (including premiums for workmen's compensation and other insurance) paid to or on behalf of employees not above grade of manager providing services to the Common Areas; personal property taxes; supplies; any Parking Garage expenses related to the portions of the parking available for public parking for customers of the Project; fire protection and fire hydrant charges; steam, water, and sewer charges; gas, electricity, and telephone utility charges incurred with respect to the Common Areas and not on account of other tenants; licenses and permit fees; rent paid for leasing equipment used in operating and maintaining the Common Areas; real estate taxes and assessments (and any tax levied in whole or in part in lieu of real estate taxes) levied on the Common Areas and the Project; and any other costs, charges, and expenses that under generally accepted accounting principles would be regarded as 2 maintenance and Common Expenses; and the maintenance of any grease traps serving the Project. Landlord shall be responsible for ensuring proper operation, maintenance and administration of Common Areas, and Landlord shall be responsible for ensuring that all Common Expenses are timely paid. III. Reconciliation of Adjustments. Upon commencement of rental, commencing in December 2018, Landlord shall submit to Tenant a statement of the anticipated monthly Adjustments for the tens of the Lease. The first statement shall cover the period from this Lease's commencement through the term of the Lease. Tenant shall pay these Adjustments on a monthly basis within fifteen (15) days of the beginning of each month of the initial Term of this Lease. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Within one (1) month of the end of the term of the Lease, Landlord shall give Tenant a statement showing the total Adjustments for the term of the Lease and Tenant's allocable share thereof, prorated from the commencement of rental. In the event the total of the monthly payments which Tenant has made during the term of the Lease be less than the Tenant's actual share of such Adjustments, then Tenant shall pay the difference in a lump sum within twenty (20) days after receipt of such statement from Landlord. Any over-payment by Tenant shall be refunded to Tenant at the time Landlord provides Tenant with the statement showing the total Adjustments for thei term of the Lease. 1 8. USES PROHIBITED. Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted use of the Premises or which will in any way increase the existing rate of or affect any fire or other insurance upon the Project or any of its contents, or cause a cancellation of any insurance policy covering said Project or any part thereof or any of its contents. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Project or injure or annoy them or use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose; nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or allow to be committed any waste in or upon the Premises. 9. COMPLIANCE WITH LAW. Tenant shall not use the Premises, or permit anything to be done in or about the Premises, which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements of any board of fire underwriters or other similar bodies now or hereafter constituted relating to or affecting the conditions, use or occupancy of the Premises, excluding structural changes not related to or affected by Tenant's improvements or acts. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between Landlord and Tenant. 10. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow to be made any alterations, additions or improvements to or of the Premises or any part thereof without first 3 obtaining the written consent of Landlord, and any alterations, additions or improvements to or of said Premises, shall at once become a part of the realty and belong to Landlord and shall be surrendered with the Premises. In the event Landlord consents to the making of any alterations, additions or improvements to the Premises by Tenant, the same shall be made by Tenant at Tenant's sole cost and expense. Upon the expiration or sooner termination of the term hereof, Tenant shall, upon written demand by Landlord, given at least thirty (30) days prior to the end of the term, at Tenant's sole cost and expense, forthwith and with all due diligence, remove any alterations, additions, or improvements made by Tenant, designated by Landlord to be removed, and Tenant at its sole cost and expense, repair any damage to the Premises caused by such removal. 11. REPAIRS. 11.A. By entry hereunder, Tenant shall be deemed to have accepted the Premises as being in good, sanitary and acceptable order, condition and repair. Tenant shall, at Tenant's sole cost and expense, keep the heating and air conditioning (HVAC) system in working order, condition and repair. Tenant shall pay for a service contract for maintenance of said HVAC system. Said maintenance contract to conform to the requirements under the warranty, if any, on said system. Tenant shall also be responsible for repairs and replacement of the HVAC system. Tenant shall, upon expiration or sooner termination of this lease hereof, surrender the Premises to Landlord in good, sanitary and acceptable order, condition, broom clean, ordinary wear and tear and damage from causes beyond the reasonable control of Tenant excepted. Any damage to adjacent premises caused by Tenant's use, occupation or vacation of the Premises shall be repaired at the sole cost and expense of Tenant. 11.6. Landlord shall repair and maintain the structural portions of the Project in which the Premises are located, including the exterior walls and roof. Landlord shall not be liable for any failure to make such repairs or to perform any maintenance unless such failure shall persist for an unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant. Except as provided in Article 25 hereof, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's use of the Premises arising from the making of any repairs, alterations, or improvements in or to any portion of the Project, Building or the Premises or in or to fixtures, appurtenances, improvements or equipment therein. 12. LIENS. Tenant shall keep the Premises and the property in which the Premises are situated free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Tenant. Landlord may require, at Landlord's sole option, that Tenant shall provide to Landlord, at Tenant's sole cost and expense, a lien and completion bond in an amount equal to one and one-half (1-1/2) times the estimated cost of any improvements, additions, or alterations in the Premises which Tenant desires to make, to insure Landlord against any liability for mechanics' and material men's liens and to insure completion of the work. 13. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any part thereof or interest therein, and shall not sublet said Premises or any part thereof or interest therein or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use said Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent shall not be 4 unreasonably withheld. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Consent to any such assignment, or subletting shall in no way relieve Tenant of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the option of Landlord, constitute a default under the terms of this Lease. 14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against and from any and all claims arising from Tenant's use of the Premises or arising from any act or negligence of Tenant, or any officer, agent, employee, guest or invitee of Tenant, and from all costs, attorneys' fees, and liabilities incurred in or about the defense of any such claim or any action or proceeding brought thereon and in case any action or proceeding be brought against Landlord by reason of such claim. Tenant, upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises, from any cause other than Landlord's gross negligence or reckless conduct. Tenant shall give prompt notice to Landlord in case of casualty or accident in the Premises. Landlord or its agents shall not be liable for any loss, damage or injury to the property or person of any person whomsoever at any time occasioned by or arising out of any act or omission of the Tenant, or use of the Premises or any part thereof, or directly or indirectly from any state or condition of the Premises or any part during the term of this Lease. 15. SUBROGATION. As long as their respective insurers so permit, Landlord and Tenant hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage and other property insurance policies existing for the benefit of the respective parties. Each party shall apply to their insurers to obtain said waivers. Each party shall obtain any special endorsements, if required by their insurer, to evidence compliance with the aforementioned waiver. 16. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in force during the term of this Lease a policy of comprehensive public liability insurance insuring Landlord, Property Manager (if any) and Tenant, and anyone else with an interest in the Project that Landlord reasonably designates, against any liability arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be in the amount of not less than $2,000,000 COMBINED SINGLE LIMIT OF LIABILITY FOR BODILY INJURY AND PROPERTY DAMAGE. Tenant may provide this insurance under a blanket policy, provided that said insurance shall have a Landlord's protective liability additional insured endorsement attached thereto. If Tenant shall fail to procure and maintain said insurance, Landlord may, but shall not be required to procure and maintain same, but at the expense of Tenant. Insurance required hereunder shall be in companies rated A:V or better in "Best's Key Rating Guide", and otherwise be acceptable to Landlord. Tenant shall deliver to Landlord, prior to right of entry, copies of policies of liability insurance required herein or with loss payable clauses satisfactory to Landlord. Tenant shall further provide copies of policies of liability insurance thirty (30) days prior to the expiration of said policies. No policy shall be cancelable or subject to reduction of coverage without written notice to all insured, including Landlord. All such policies shall be written as primary policies not contributing with and not in excess of coverage which Landlord may carry. 5 17. ELECTRICITY. Tenant shall pay for all electricity services supplied to the Premises, together with any taxes thereon. 18. INTENTIONALLY OMITTED. 19. INTENTIONALLY OMITTED. 20. INTENTIONALLY OMITTED. 21. ENTRY BY LANDLORD. Landlord reserves, and shall at any and all times have, the right, but not the obligation, to enter the Premises to inspect the same, to repair the Premises and any portion of the Building of which the Premises are a part that Landlord may deem necessary or desirable, without abatement of rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be unreasonably blocked thereby, and further providing that the use of the Premises shall not be interfered with unreasonably. For each of the aforesaid purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency, in order to obtain entry to the Premises without liability to Tenant except for any failure to exercise due care for Tenant's property and any entry to the Premises obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. 22. TENANT'S DEFAULT. The occurrence of any one or more of the following events shall constitute a default and/or breach of this Lease by Tenant. 22.A. The vacating or abandonment of the Premises by Tenant. 22.B. The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, and after, Tenant's opportunity to cure said default has expired. 22.C. The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant, other than described in Article 22.B. above, where such failure shall continue for a period of ten (10) days after written notice thereof by Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than ten (10) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant expeditiously commences and diligently prosecutes such cure to completion. 23. REMEDIES IN DEFAULT. In the event of any such default and/or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default and/or breach: 6 23.A. Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to, the cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and alteration of the Premises; reasonable attorneys' fees; that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease; and (1) the worth at the time of award of the unpaid rent 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 which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and (4) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the Lease or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in subparagraphs (1) and (2) above is computed by allowing interest at the maximum lawful rate. The worth at the time of award of the amount referred to in subparagraph (3) above is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). Unpaid installments of rent or other sums shall bear interest from the date due at the maximum legal rate; or 23.B. Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to recover the rent and any other charges and Adjustments as may become due hereunder; or 23.C. Pursue any other remedy now or hereafter available to Landlord under the laws or jurisdictional decisions of the state in which the Premises are located. 24. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant to Landlord specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for performance then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. In no event shall Tenant have the right to terminate this Lease as a result of Landlord's default and Tenant's remedies shall be limited to damages and/or injunction. 25. RECONSTRUCTION. In the event the Premises are damaged by fire or other perils covered by extended coverage insurance, Landlord agrees to forthwith repair same, and this Lease shall remain in full force and effect, as long as the Premises may thereafter be used for its intended purposes, except that Tenant shall be entitled to a proportionate reduction of the Rent from the date of damage and while such repairs are being made, such proportionate reduction to be based upon the extent to which the damage and making of such repairs shall reasonably interfere with the business carried on by Tenant to the Premises; provided, however, if the damage is due to the fault or neglect of Tenant or its agents, employees, guests, invitees, or customers, there shall be no abatement of rent. In the event the Premises are damaged as a result of any causes other than the perils covered by fire and extended coverage insurance, the Landlord shall forthwith repair the same, provided the extent of the destruction be less than ten percent (10%) of the then full replacement cost of the Premises. In the event the destruction of the Premises is to an extent of ten percent (10%) or more of the full replacement cost then Landlord shall have the option to (1) to repair or restore such damage, this Lease continuing in full force and effect, but only if the Premises may still be used for its intended purpose after any such damage, but the Rent to be proportionately reduced as hereinabove in this Article provided; or (2) give notice to Tenant at any time within sixty (60) days after such damage, terminating this Lease as of the date specified in such notice, which date shall be no less than fifteen (15) days after the giving of such notice. In the event of giving such notice, this Lease shall expire and all interest of Tenant in the Premises shall terminate on the date so specified in such notice and the Minimum Rent proportionately reduced, based upon the extent, if any, to which such damage interfered with the business carried on by Tenant in the Premises, shall be paid up to the date of such termination. 26. INTENTIONALLY OMITTED. 27. INTENTIONALLY OMITTED. 28. INTENTIONALLY OMITTED. 29. INTENTIONALLY OMITTED. 30. COVENANT AGAINST DISCRIMINATION. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 31. HOURS OF BUSINESS. Subject to the provisions of Article 25 hereof, Tenant shall only allow the Premises to be open for use by the public during the hours of 8:00 a.m. and 10:00 p.m., daily; provided, however, that this provision shall not apply if the Premises should be closed and the use of the Premises temporarily discontinued therein on account of strikes, lockouts, public health and/or safety, or similar causes. Tenant shall keep the Premises adequately stocked with sufficient supplies (such as toilet paper, hand soap, and other bathroom supplies) to care for the intended use of the Premises. 8 32. GENERAL PROVISIONS. (i) Plats and Riders. Exhibits, clauses, plats, riders and addendums, if any, affixed to this Lease are a part hereof. (ii) Waiver. The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding default at the time of the acceptance of such rent. (fif) Joint Obligation. If there be more than one Tenant, the obligations hereunder imposed shall be joint and several. (iv) Marginal Headings/Captions. The marginal headings, captions and article titles to the articles of this Lease are not part of the Lease and shall have no effect upon the construction or interpretation of any part hereof. (v) Time1 Time is of the essence of this Lease and each and all of its provisions in which performance is a factor. (vi) Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. (vii) Recordation. This Lease shall be recorded in the official records of Riverside County. (viii) Quiet Possession. Upon Tenant paying the rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Tenant's part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Lease. (ix) Rights and Remedies Reserved. Tenant and Landlord intend, understand and agree that neither the Parties nor any third party shall argue that this Lease is inconsistent with this express reservation and declination to waive or compromise any of Tenant's or Landlord's rights or remedies under the Amended PFA, and/or pursuant to any federal, state or local law or authority. (x) Entire Agreement. This Lease contains the entire agreement of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior or other agreements or understandings not contained herein pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. This Lease shall not be effective or binding on any party until fully executed by both parties hereto. (xi) Inability to Perform. This Lease and the obligations of Tenant hereunder shall 9 not be affected or impaired because Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond the reasonable control of Landlord. (xii) Partial Invalidity. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full force and effect. (xiii) Cumulative Rights. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity. (xiv) Choice of Law. This Lease shall be governed by the laws of the State in which the Premises are located. (xv) Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Lease, the prevailing party shall be entitled to recover the fees of its attorneys in such action or proceeding in such amount as the court may adjudge reasonable as attorneys' fees. (xvi) Sale of Premises by Landlord. In the event of any sale of the Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed, without any further agreement between the parties or their successor in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of Landlord under this Lease. (xvii) Subordination, Attornment. Upon request of Landlord, Tenant will in writing, subordinate its rights hereunder to the lien of any mortgage or deed of trust, to any bank, insurance company or other lending institution, now or hereafter in force against the Premises, and to all advances made or hereafter to be made upon the security hereof. In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust made by Landlord covering the Premises, Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease. The provisions of this Article to the contrary notwithstanding, and so long as Tenant is not in default hereunder, this Lease shall remain in full force and effect for the full term hereof. (xviii) Notices. All notices and demands which may or are to be required or permitted to be given by either party on the other, hereunder, shall be in writing. All notices and demands by Landlord to Tenant shall be sent by United States Mail, postage prepaid, addressed to Tenant at the Premises, and to the address hereinbelow, or to such other place as Tenant may from time to time designate in a notice to Landlord. All notices and demands by Tenant to Landlord shall be sent by United States Mail, postage prepaid, addressed to Landlord at the address set forth herein, and to such other person or place as Landlord may from time to time designate in a notice to Tenant. 10 To Property Manager at: GPS Asset Management, Inc. 201 N. Palm Canyon Drive, Suite 250 Palm Springs, CA 92262 To LANDLORD at: DTPS C-15, LLC c/o GRIT DEVELOPMENT 201 N. PALM CANYON DRIVE, SUITE 200 PALM SPRINGS, CA 92262 To Tenant at: CITY OF PALM SPRINGS ATTN: CITY MANAGER 3200 E. TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262 (xix) Tenant's Estoppel Statement. Tenant shall at any time and from time to time, upon not less than three (3) days prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect), and the date to which the rental and other charges are paid in advance, if any, and (b) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed, and (c) setting forth the date of commencement of rents and expiration of the term hereof. Any such statement may be relied upon by the prospective purchaser or encumbrancer of all or any portion of the real property of which the Premises are a part. (xx) Authority of Tenant. Each individual executing this Lease on behalf of the Tenant represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said entity, and that this Lease is binding upon Tenant. (xxi) No Discrimination. The Tenant herein covenants this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of.the Premises herein leased nor shall the Tenant, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, Tenants, subtenants, or vendees in Premises herein Lease. 33. INTENTIONALLY OMITTED. [SIGNATURES ON NEXT PAGE.] 11 IN WITNESS WHEREOF, Landlord and Tenant have executed this Public Restroom Lease as of the day and year first above written. "LANDLORD" "TENANT" DTPS C-15, LLC, a California limited CITY OF PALM SPRINGS liability company B By: �, Michael Br , anaging I ember W�* David H. Ready, anager ATTEST: By: 1 thony J. C, City Clerk APPROVED AS TO FORM By: Edward Kotkin, City Attorney APPROVED BY CITY COUNCIL AIM 12 EXHIBIT "A" PREMISES SITE PLAN -- ---- 6alardo Road --- '~L~� WWI A 4 � I i ��,� ' � >�_;� ��� x�' ���� � �� ass•" LOD - Suite C Rest Rooms- Key Plan Ye,mmie.n �I..wpe,m mminmum: mh emtlna.eIN.le in,hbmmlm eNllele el X. nTY �••rmm M1eee!er In mfmtl-uRm�tle�tl¢mmtla am e enmps.M1 w Ana,a,agEllwY•rll G mom,W m n Now!emt dog 1a�N Nry eurv,.rtmmebly edem'e ee Fe IRHIef NY VeN WtlFa OayrtnM. .. LNLGiY NLL IY W .l C6AIHJ9 RfAIFO WM IXThy UN R E mo A.9rtLL KANS WTI I.SifNOMO SPRAY OX FRE PIWOANG SYSIFN. A W, MUSH _ I, 16 C RR 460 S.F. 0 o h GRIT LOD-Suite C Reet Rooms DOWNTOWN PALMSPRINGS �. PA VA CON'ItlJ NNIL�, �Cnll[OP'll. ��`-W 13