HomeMy WebLinkAboutA5958 - WEST AVIATION SERVICES - SAN DIEGO DBA SIERRA AVIATION GROUPWEST AVIATION SERVICES — SAN DIEGO, INC. dba SIERRA AVIATION GROUP
NON-EXCLUSIVE OPERATING AND LEASE AGREEMENT
FOR TERMINAL USE SPACE AT
PALM SPRINGS INTERNATIONAL AIRPORT
THIS LEASE ("Lease") is made and entered into this 1st day of June, 2021, by and
between the City of Palm Springs, a municipal corporation ("Lessor"), and West Aviation
Services -- San Diego, Inc. dba Sierra Aviation Group, a California Corporation ("Lessee").
City and Lessee may herein be referred to individually as a "Party" and collectively as
"Parties."
RECITALS:
A. Lessor desires to lease terminal use space at Palm Springs International Airport
("Airport") to operate a Commercial Aeronautical Activity, which includes skycap,
wheelchair services and baggage delivery services for airline passengers.
B. City believes that the travelers using the City's airport terminal would benefit from
these airline related services.
NOW THEREFORE, City and Lessee mutually agree as follows:
AGREEMENT
1.0 LEASE SUMMARY.
Certain fundamental lease provisions are presented in this Section and represent the
agreement of the parties hereto, subject to further definition and elaboration in the
respective referenced Sections and elsewhere in this Lease. In the event of any conflict
between any fundamental lease provision and the balance of this Lease, the latter shall
control. References to specific Sections are for convenience only and designate some of
the Sections where references to the particular fundamental lease provisions may appear.
1.1 Demised Premises. The "Demised Premises" shall refer to that certain
property consisting of office space totaling approximately 345 square feet, located in the
Palm Springs International Airport terminal building and more particularly described in
Exhibit °A" attached hereto.
1.2 Lease Term. The term of this lease shall commence on June 1, 2021
and shall terminate on May 31, 2022.
1.3 Extension Option. Lessee may have the right to renew the Lease for
Two (2), one (1) year terms which may be exercised by providing written notice to Lessor
no less than sixty (60) prior to the expiration of the Lease term or renewal period. The
rental payments for any extension shall be calculated as indicated in Section 1.4.
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1.4 Lease Rental Payments. The rent for the Demised Premises is at a
Rate of $44.60 per square foot per annum, paid in monthly increments of $1,282.25 due
on the first day of each month. The monthly rent shall be adjusted June 1B' of each year
in an amount equal to the increase in the consumer price index for All -Urban Consumers
(CPI-U) in the Riverside -San Bernardino -Orange County, CA for the month of March
preceding the adjustment date as compared to the preceding base index. In the event
that the CPI-U is not published for the Riverside -San Bernardino -Orange County for the
applicable timeframe, the lower of the CPI for either the Los Angeles or San Diego areas
may be used. City shall send written notice of the applicable rent increase of each
successive year along with documentation evidencing the calculation used to arrive at the
figure.
Section 1.3.
1.5 Extension Options. Extension options in this lease as noted in
1.6 Security Deposit. NIA
1.7 Use of Premises. Lessee shall use and occupy the Premises for the
purpose of administrative services/office/employee workspace related to the Commercial
Aeronautical Activities
Lessor: City of Palm Springs
Attn: City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Cc: Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite 1
Palm Springs, CA 92262
2.0 TERM
2.1 Term. The term of this Lease shall commence on the date specified
in Section 1.2 ("Commencement Date") and shall continue for the period specified therein
unless earlier terminated as provided herein.
2.2 Reserved.
2.3 Time. Time is of the essence of this Lease.
2.4 Force Maieure. If either party hereto shall be delayed or prevented
from the performance of any act required hereunder by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive governmental laws or
regulations or other cause without fault and beyond the control of the party obligated
(financial inability excepted), performance of such act shall be excused for the period of
the delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay, provided such party provides the other party
written notice of such event within ten (10) days of the commencement of the prompt
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payment of any rental or other charge required of Lessee hereunder except as may be
expressly provided elsewhere in this Lease.
2.5 Termination by Lessor. Lessor shall have the right to terminate this
Lease by providing Lessee with at least thirty (30) days advance written notice. If Lessor
terminates this Lease as provided in this Section, Lessee hereby waives any right to
receive any other compensation from Lessor, including, but not limited to, the value of
Lessee's leasehold interest, loss of goodwill and relocation benefits, inverse
condemnation or the taking of property and Lessor shall have no obligation to pay Lessee
therefor.
2.6 Holding Over. Any holding over with the consent of Lessor, express
or implied, shall be construed to be a tenancy from month -to -month, cancelable upon
thirty (30) days' written notice, and at a monthly rental equal to one hundred and fifty
percent (150%) of the monthly rental in effect at the expiration of the contract services
agreement.
2.7 Termination by Lessee. Lessee shall have the right to terminate this
Lease by providing Lessor with at least thirty (30) days advance written notice. If Lessee
terminates this Lease as provided in this Section, Lessee hereby waives any right to
receive any other compensation from Lessor, including, but not limited -to, the
unamortized value of Lessee's leasehold improvements, Lessee's leasehold interest, loss
of goodwill and relocation benefits, inverse condemnation or the taking of property and
Lessor shall have no obligation to pay Lessee therefor.
3.0 RENTAL
3.1 Monthly Rental. Lessee shall pay to Lessor, during the term of this
Lease from and after the Commencement Date, as monthly rental ("Monthly Rental") for
the Premises the sum specified in Section 1.4 hereof, which sum shall be paid in advance
on the first day of each calendar month. In the event the Commencement Date does not
occur on the first day of a calendar month, the Lessee shall pay the rental for the fractional
month on the Commencement Date on a per diem basis calculated on a thirty (30) day
month. All rental to be paid by Lessee to Lessor shall be in lawful money of the United
States of America and shall be paid without deduction or offset, prior notice or demand,
at the address designated in Section 1.7 hereof.
3.2 Rental _Adjustment. Rental adjustment are as specified in Section
1.4.
3.3 Additional Rental. For the purposes of this Lease, all monetary
obligations of Lessee under this Lease, including but not limited to, insurance premiums,
property taxes, maintenance expenses, late charges and utility costs shall be deemed to
be additional rental.
3.4 Real Propedy Taxes. Unless Lessee qualifies for an exemption, in
addition to all rentals herein reserved, Lessee shall pay, at the election of Lessor, either
directly to the taxing authority or to Lessor, annual real estate taxes and assessments
levied upon the Premises (including any possessory interest taxes), as well as taxes of
every kind and nature levied and assessed in lieu of, in substitution for, or in addition to,
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existing real property taxes. Such amount shall be paid on the date that is twenty (20)
days prior to the delinquent date or, if Lessor receives the tax bill, ten (10) days after
receipt of a copy of the tax bill from Lessor, whichever is later. Even though the term of
this Lease has expired and Lessee has vacated the Premises, when the final
determination is made of Lessee's share of such taxes and assessments, Lessee shall
immediately pay to Lessor the amount of any additional sum owed.
3.5 Personal Property Taxes. Unless Lessee qualifies for an exemption
from property taxes or possessory interest taxes due to its non-profit status, during the
term hereof, Lessee shall pay, prior to delinquency all taxes assessed against and levied
upon fixtures, furnishings, equipment and all other personal property of Lessee contained
in the Premises, and when possible Lessee shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from the real
property of Lessor.
3.6 Utilities. All cost of water, gas, heat, electricity, and sewer services
used in, upon, or about the Demised Premises shall be paid by the City. Lessee shall
pay all telephone, internet, cable television, satellite, broadband and other
telecommunications services.
3.7 Late Payment. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rental or other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which is extremely difficult to
ascertain. Such costs include, but are not limited to, processing and accounting charges.
Accordingly, any payment of any sum to be paid by Lessee not paid within ten (10) days
of its due date, shall be subject to a five percent (5%) late charge. Lessor and Lessee
agree that this late charge represents a reasonable estimate of such costs and expenses
and is fair compensation to Lessor for its loss suffered by such late payment by Lessee.
Sixty (60) days before the anniversary date each year the City shall notify the Lessee of
any outstanding delinquency, which must be cured prior to the anniversary date or the
City may exercise its right of termination under section 2.5 and terminate the lease.
3.8 interest. Any sum to be paid pursuant to the terms of this Lease not
paid when due shall bear interest from and after the due date until paid at a rate equal to
three percent (3%) over the reference rate being charged by Bank of America, N.A. from
time to time during such period, so long as the rate does not exceed the maximum non -
usurious rate permitted by law in which case interest shall be at the maximum non -
usurious rate allowed by law at the time the sum became due.
4.0 USE OF THE PREMISES
4.1 Permitted Use. The Lessor hereby leases to Lessee and Lessee
leases from Lessor the Premises with appurtenances as defined herein, for the purpose
of conducting thereon only the use specified in Section 1.7 of this Lease and for no other
use. No signs posters or similar devices shall be erected, displayed or maintained by
the Lessee in view of the general public without advance written notice of the Airport
Executive Director.
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4.2 Prohibited Use. The operations of the Lessee shall be conducted in
an orderly and proper manner and so as not to annoy, disturb, or be offensive to others
at the Airport. No solicitation of the public is allowed. Tenant shall provide uniforms and
its employees shall wear badges or other means of identification.
4.3 Compliance with Laws. Lessee shall, at his own cost and expense,
comply with all of the requirements of all municipal, state and federal authorities now in
force or which may hereafter be in force pertaining to the use of the Premises, and shall
faithfully observe in said use all municipal ordinances, including, but not limited to, the
General Plan and zoning ordinances, state and federal statutes, or other governmental
regulations now in force or which shall hereinafter be in force. Lessee's violation of law
shall constitute an incurable default under this Lease. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action or proceeding against
Lessee, whether Lessor is a party thereto or not, that Lessee has violated any such order
or statute in said use, shall be conclusive of that fact as between the Lessor and Lessee.
Lessee shall not engage in any activity on or about the Premises that violates any
Environmental Law, and shall promptly, at Lessees sole cost and expense, take all
investigatory and/or remedial action required or ordered by any governmental agency or
Environmental Law for clean-up and removal of any contamination involving any
Hazardous Material created or caused directly or indirectly by Lessee. The term
"Environmental Law" shall mean any federal, state or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environmental conditions on,
under or about the Demised Premises, including, without limitation, (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
Sections 9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii) California Health and Safety Code
Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986,
California Health and Safety Code Section 25249.5 et seq.; (v) California Health and
Safety Code Section 25359.7; (vi) California Health and Safety Code Section 25915; (vii)
the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.; (viii) California
Water Code Section 1300 et seq.; and (ix) California Civil Code Section 3479 et seq., as
such laws are amended and the regulations and administrative codes applicable thereto.
The term "Hazardous Material" includes, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste",
"restrictive hazardous waste" or "hazardous substance" or considered a waste, condition
of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum
product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of
California to cause cancer and/or reproductive toxicity. It is the intent of the parties hereto
to construe the terms "Hazardous Materials" and "Environmental Laws" in their broadest
sense. Lessee shall provide all notices required pursuant to the Safe Drinking Water and
Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et
seq. Lessee shall provide prompt written notice to Lessor of the existence of Hazardous
Substances on the premises and all notices of violation of the Environmental Laws
received by Lessee.
4.4 Operations for the benefit of Public. Lessee agrees to operate the
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Demised Premises for the use and benefit of the Public, to make available all Lessee
facilities to the public, without discrimination on the grounds of sex, race, color, or national
origin.
4.5 Public Facilities Ingress, Egress and Quiet En'o ment. City agrees
that Lessee, upon payment of the rental hereunder and performing the covenants of the
Lease, may quietly have, hold and enjoy the Demised Premises during the term of the
Lease, and that Tenant shall have the non-exclusive right to use, in common with others,
the public at the Airport and Tenant shall have a reasonable right of ingress and egress
from the Demised Premises and the public facilities for its employees, visitors and
customers.
4.6 Hours of Business. Subject to the provisions of Section 7.0 hereof,
Lessee shall continuously during the entire term hereof conduct and carry on Lessee's
business in the Premises and shall keep the Premises open for business and cause
Lessee's business to be conducted therein during the Lessee's usual business hours of
each and every business day.
5.0 ALTERATIONS AND REPAIRS
5.1 Alterations and Fixtures. Lessee shall not make, or suffer to be
made, any alterations to the Premises, or any part thereof, without the prior written
consent of Lessor. Any alterations to the Premises, except movable furniture and trade
fixtures, shall become at once a part of the realty and shall at the expiration or earlier
termination of this Lease belong to Lessor. Lessee shall not in any event make any
changes to the exterior of the Premises. Any such alterations shall be in conformance
with the requirements of all municipal, state, federal, and other governmental authorities,
including requirements pertaining to the health, welfare or safety of employees or the
public and in conformance with reasonable rules and regulations of Lessor. Any damage
occasioned by such removal shall be repaired at Lessee's expense so that the Premises
can be surrendered in a good, clean and sanitary condition as required by Section 5.2
hereof. Any and all fixtures and appurtenances installed by Lessee shall conform with the
requirements of all municipal, state, federal, and governmental authorities, including
requirements pertaining to the health, welfare, or safety of employees or the public. Upon
completion of construction of the alterations, Lessee shall submit to Lessor evidence
satisfactory to Lessor of the cost of said alterations ("Improvement Costs").
5.2 Maintenance and Repair. Lessee shall, subject to Lessor's
obligations hereinafter provided, at all times during the term hereof, and at Lessee's
expense, keep, maintain and repair the Premises, and other improvements within the
Premises in good and sanitary order, condition, and repair (except as hereinafter
provided). Lessor should be notified immediately of any necessary maintenance and
repair of any store front, doors, window casements, walls, glazing, heating and air
conditioning system, plumbing, pipes, electrical wiring and conduits. Lessee hereby
waives all right to make repairs at the expense of Lessor, and Lessee hereby waives all
rights provided for by the Civil Code of the State of California to make said repairs. By
entering into the Premises, Lessee shall be deemed to have accepted the Premises as
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being in good and sanitary order, condition and repair. Lessee agrees on the last day of
said term, or sooner termination of this Lease, to surrender the Premises with
appurtenances, in the same condition as when received and in a good, clean and sanitary
condition, reasonable use and wear thereof and damage by fire, act of God or by the
elements excepted. Lessee shall periodically sweep and clean the sidewalks adjacent to
the Premises, as needed. Upon Lessee's possession of the Premises, Lessee shall be
deemed to have accepted the Premises as being in good condition and repair.
Lessee agrees that it will not, nor will it authorize any person to, go onto the
roof of the building of which the Premises are a part without the prior written consent of
Lessor. Said consent will be given only upon Lessor's satisfaction that any repairs
necessitated as a result of Lessee's action will be made by Lessee at Lessee's expense
and will be made in such a manner so as not to invalidate any guarantee relating to said
roof.
5.3 Free from Liens. Lessee shall keep the Premises free from any liens
arising out of any work performed, material furnished, or obligation incurred by Lessee or
alleged to have been incurred by Lessee.
6.0 INSURANCE AND INDEMNIFICATION
6.1 Insurance. Prior to its ability to access the Demised Premises,
Lessee will provide City with proof of insurance, at Tenant's sole cost and expense, to
remain in full force and effect during the entire term of this lease. The following policies
of insurance shall be maintained:
6.2 Insurance Provided by Lessee. Comprehensive or Commercial
Form General Liability Insurance shall include the following minimal limits:
a. General Liability including operations, products and completed
operations $1,000,000 each occurrence for bodily injury, personal injury
and property damagel$2,000,000 aggregate
b. Automobile $1,000,000 each accident; $1,000,000 uninsured
motorist
C. Workers Compensation $1,000,000 each accident/$1,000,000 each
employee for disease.
d. Excess Liability/Umbrella Form
6.3 An Additional Insured Endorsement is required for the General Liability
Insurance policy naming the City, its officers, employees, and agents as additional
insured on the policy.
6.4 The policies shall provide for a 30 day notice to the City prior to
termination, cancellation, or change.
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6.5 The general liability and excess liability/umbrella policies must be
endorsed to provide that each policy shall apply on a primary and noncontributing basis
in relation to any insurance or self-insurance, primary or excess, maintained by or
available to the City or its officials, employees, and agents.
6.6 The Workers Compensation policy shall contain the insurer's waiver
of subrogation (or waiver of right of recovery) in favor of City, its elected officials, officers,
employees, and agents.
6.7 If, in the City's opinion, the minimum limits of the insurance
herein required have become inadequate during the period of this Agreement, the
Concessionaire shall increase such minimum limits by reasonable amounts on request
of the City provided that said coverage is available at standard commercial rates.
7.0 ABANDONMENT AND SURRENDER
7.1 Abandonment. Lessee shall not vacate or abandon the Premises at
any time during the term of this Lease. If Lessee shall abandon, vacate or surrender the
Premises or be dispossessed by process of law, or otherwise, any personal property
belonging to Lessee and left on the Premises shall be deemed to be abandoned, at the
option of Lessor, except such property as may be mortgaged to Lessor.
7.2 Surrender of Lease. The voluntary or other surrender of this Lease
by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the
option of Lessor, terminate all or any existing subleases or sub -tenancies, or may, at the
option of Lessor, operate as an assignment to it of any or all of such subleases or sub -
tenancies.
8.0 DAMAGE AND DESTRUCTION OF PREMISES.
In the event of (a) partial or total destruction of the Premises during the term of this Lease
which requires repairs to the Premises, or (b) the Premises being declared unsafe or unfit
for occupancy by any authorized public authority for any reason other than Lessee's act,
use or occupation, which declaration requires repairs to the Premises, Lessor shall
forthwith make said repairs provided Lessee gives to Lessor thirty (30) days written notice
of the necessity therefor. No such partial destruction (including any destruction necessary
in order to make repairs required by any declaration made by any public authority) shall
in any way annul or void this Lease except that Lessee shall be entitled to a proportionate
reduction of Monthly Rental while such repairs are being made, such proportionate
reduction to be based upon the extent to which the making of such repairs shall interfere
with the business carried on by Lessee in the Premises. However, if during the last two
(2) years of the term of this Lease the Premises are damaged as a result of fire or any
other insured casualty to an extent in excess of twenty five percent (25%) of the then
replacement cost (excluding foundations), Lessor may within thirty (30) days following the
date such damage occurs, terminate this Lease by written notice to Lessee. If Lessor,
however, elects to make said repairs, and provided Lessor uses due diligence in making
said repairs, this Lease shall continue in full force and effect, and the Monthly Rental shall
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be proportionately reduced while such repairs are being made as hereinabove provided.
Nothing in the foregoing to the contrary withstanding, if the Premises or said building is
damaged or destroyed at any time during the term hereof to an extent of mare than
twenty-five percent (25%) of the then replacement cost (excluding foundations) as a result
of a casualty not insured against, Lessor may within thirty (30) days following the date of
such destruction terminate this Lease upon written notice to Lessee. If Lessor does not
elect to terminate because of said uninsured casualty, Lessor shall promptly rebuild and
repair the Premises and/or the building and the Monthly Rental shall be proportionately
reduced while such repairs are being made as hereinabove provided. If Lessor elects to
terminate this Lease, all rentals shall be prorated between Lessor and Lessee as of the
date of such destruction. In respect to any partial or total destruction (including any
destruction necessary in order to make repairs required by any such declaration of any
authorized public authority) which Lessor is obligated to repair or may elect to repair under
the terms of this Section, Lessee waives any statutory right it may have to cancel this
Lease as a result of such destruction.
9.0 SUBLETTING. For the purposes of this lease, subletting shall not be allowed.
10.0 DEFAULT
10.1 Default by Lessee. The occurrence of any one (1) or more of the
following events shall constitute a default and breach of this Lease by Lessee: (a) the
failure to pay any rental or other payment required hereunder to or on behalf of Lessor
more than three (3) days after written notice from Lessor to Lessee that Lessee has failed
to pay rent when due; (b) the failure to perform any of Lessee's agreements or obligations
hereunder (exclusive of a default in the payment of money) where such default shall
continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee
which notice shall be deemed to be the statutory notice so long as such notice complies
with statutory requirements; (c) the vacation or abandonment of the Premises by Lessee;
(d) the making by Lessee of a general assignment for the benefit of creditors; (e) the filing
by Lessee of a voluntary petition in bankruptcy or the adjudication of Lessee bankruptcy;
(f) the appointment of a receiver to take possession of all or substantially all the assets of
Lessee located at the Premises or of Lessee's leasehold interest in the Premises; (g) the
filing by any creditor of Lessee of an involuntary petition in bankruptcy which is not
dismissed within sixty (60) days after filing; or (h) the attachment, execution or other
judicial seizure of all or substantially all of the assets of Lessee or Lessee's leasehold
where such an attachment, execution or seizure is not discharged within sixty (60) days.
Any repetitive failure by Lessee to perform its agreements and obligations hereunder,
though intermittently cured, shall be deemed an incurable default. Two (2) breaches of
the same covenant within a sixty (60) day period, a notice having been given pursuant to
(a) or (b) above for the first breach, or three (3) of the same or different breaches at any
time during the term of this Lease for which notices pursuant to (a) or (b) above were
given for the first two (2) breaches shall conclusively be deemed to be an incurable
repetitive failure by Lessee to perform its obligations hereunder.
In the event of any such default or breach by Lessee, Lessor may at any
time thereafter, without further notice or demand, rectify or cure such default, and any
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sums expended by Lessor for such purposes shall be paid by Lessee to Lessor upon
demand and as additional rental hereunder. In the event of any such default or breach by
Lessee, Lessor shall have the right (i) to continue the lease in full force and effect and
enforce all of its rights and remedies under this Lease, including the right to recover the
rental as it becomes due under this Lease, or (H) Lessor shall have the right at any time
thereafter to elect to terminate the Lease and Lessee's right to possession thereunder.
10.2 No Waiver. Acceptance of rental hereunder shall not be deemed a
waiver of any default or a waiver of any of Lessor's remedies.
10.3 Lessor's Default. Lessor shall not be in default unless Lessor fails to
perform obligations required of Lessor within a reasonable time, but in no event later than
thirty (30) days after written notice by Lessee to Lessor and to the holder of any first
mortgage or deed of trust covering the Premises whose name and address shall have
theretofore been furnished to Lessee in writing, specifying wherein Lessor has failed to
perform such obligation; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance then Lessor shall not
be deemed in default if Lessor commences performance within a thirty (30) day period
and thereafter diligently prosecutes the same to completion. In no event shall Lessee
have the right to terminate this Lease as a result of Lessor's default and Lessee's
remedies shall be limited to damages and/or an injunction.
11.0 CONDEMNATION.
In the event a condemnation or a transfer in lieu thereof results in a taking of any portion
of the Premises, Lessor may, or in the event a condemnation or a transfer in lieu thereof
results in a taking of twenty-five percent (25%) or more of the Premises, Lessee may,
upon written notice given within thirty (30) days after such taking or transfer in lieu thereof,
terminate this Lease. Lessee shall not be entitled to share in any portion of the award and
Lessee hereby expressly waives any right or claim to any part thereof. Lessee shall,
however, have the right to claim and recover, only from the condemning authority (but not
from Lessor), any amounts necessary to reimburse Lessee for the cost of removing stock
and fixtures. If this Lease is not terminated as above provided, Lessor shall use a portion
of the condemnation award to restore the Premises.
12.0 MISCELLANEOUS
12.1 Reservation of Right to Modify Property . Lessor hereby reserves the
right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce,
reconfigure, enclose and/or otherwise alter all or any portion of the Premises (collectively
"Modifications"), in such manner and at such time or times, throughout the term of this
Lease, as Lessor may, in its sole and absolute discretion, deem to be in the best interests
of the Property. Such Modifications may include, without limitation, the right to construct
new buildings on the Property for additional uses, to remove, renovate, repair, add to,
modernize or otherwise alter the building in which the Premises are situated as well as
other buildings, facilities, structures, malls, walkways, landscaping, parking and common
areas or other areas within the Property. In connection with any and all such
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Modifications, Lessor may enter the Premises to the extent reasonably required by Lessor
to pursue and complete such Modifications. In addition, Lessor may temporarily close
Portions of the parking and common areas and cause temporary obstructions in
connection with any Modifications. Lessee agrees that under no circumstances shall the
Modifications as to any portion of the Property or the construction activity that takes place
in the course of making the Modifications, or any aspect thereof, including Lessor's entry
into the Premises, constitute an eviction or partial eviction of Lessee or a breach of
Lessee's right to quiet enjoyment or of any other provision of this Lease, nor entitle Lessee
to damages, injunctive relief or other equitable relief, nor entitle Lessee to any abatement
or reduction in the Monthly Rental, additional rental or other charges or sums due under
this Lease; provided Lessor uses reasonable efforts to mitigate any adverse effects on
Lessee caused by the Modifications.
12.2 Entry and Inspection. Lessee shall permit Lessor and his agents to
enter into and upon the Premises at all reasonable times for the purpose of inspecting the
same or for the purpose of maintaining the Premises as required by the terms of this
Lease or for the purpose of posting notices of non -liability for alterations, additions or
repairs.
12.3 Estoppel Certificate. If, as a result of a proposed sale, assignment,
or hypothecation of the Premises or the land thereunder by Lessor, or at any other time,
an estoppel certificate shall be requested of Lessee, Lessee agrees, within ten (10) days
thereafter, to deliver such estoppel certificate addressed to any existing or proposed
mortgagee or proposed purchaser, and to the Lessor. Lessee shall be liable for any loss
or liability resulting from any incorrect information certified, and such mortgagee and
purchaser shall have the right to rely on such estoppel certificate and financial statement.
12.4 Jurisdiction and Venue. The parties hereto agree that the State of
California is the proper jurisdiction for litigation of any matters relating to this Lease, and
service mailed to the address of Lessees set forth herein shall be adequate service for
such litigation. The parties further agree that Riverside County, California is the proper
place for venue as to any such litigation and Lessee agrees to submit to the personal
jurisdiction of such court in the event of such litigation.
12.5 Partial Invalidit . If any term, covenant, condition or provision of this
Lease is held to be invalid, void, or unenforceable, the remainder of the provisions hereof
shall remain in full force and effect and shall in no way be affected, impaired or invalidated
thereof.
12.6 Successors in Interest. The covenants herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties hereto; and all of the parties hereto
shall be jointly and severally liable hereunder.
12.7 No Oral Agreements. This (i) Lease covers in full each and every
agreement of every kind or nature whatsoever between the parties hereto concerning this
Lease, (ii) supersedes any and all previous obligations, agreements and understandings,
it
55575.38160\34190904.1
if any, between the parties, oral or written, and (iii) merges all preliminary negotiations
and agreements of whatsoever kind or nature herein. Lessee acknowledges that no
representations or warranties of any kind or nature not specifically set forth herein have
been made by Lessor or its agents or representatives.
12.8 Authority. In the event that Lessee is a corporation or a partnership,
each individual executing this Lease on behalf of said corporation or said partnership, as
the case may be, represents and warrants that he or she is duly authorized to execute
and deliver this Lease on behalf of said corporation or partnership, in accordance with a
duly adopted resolution of the Board of Directors, if a corporation, or in accordance with
the Partnership Agreement, if a partnership, and that this Lease is binding upon said
corporation or partnership in accordance with its terms. Lessee represents and warrants
to Lessor that the entering into this Lease does not violate any provisions of any other
agreement to which Lessee is bound.
12.9 Relationship of Parties. The relationship of the parties hereto is that
of Lessor and Lessee, and it is expressly understood and agreed that Lessor does not in
any way or for any purpose become a partner of Lessee in the conduct of Lessee's
business or otherwise, or a joint venture with Lessee, and that the provisions of this Lease
and the agreements relating to rent payable hereunder are included solely for the purpose
of providing a method whereby rental payments are to be measured and ascertained.
12.10 Nondiscrimination. Lessee for itself, personal representatives,
successors in interest, and assigns, as part of the consideration hereof, does hereby
covenant and agree as a covenant running with the Demised Premises that: (1) no
person, 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") shall be
excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities; (2) it shall ensure that applicants are employed,
and that employees are treated during their employment, without regard to any prohibited
basis; (3) as a condition precedent to City's lawful capacity to enter this Agreement, and
in executing this Agreement, Lessee certifies that its actions and omissions hereunder
shall not incorporate any discrimination arising from or related to any prohibited basis in
any Lessee 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, to the extent applicable to Lessee, it 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; (4) in the
construction of any improvements on, over, or under such Premises and the furnishing of
services thereon, no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be subjected to
discrimination; and (5) it shall use the Premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in
12
55575.38160134190904.1
Federally -Assisted Programs of the Department of Transportation -Effectuation of Title VI
of the Civil Rights Act of 1964, including applicable Regulations that may be amended
and are hereby incorporated and attached as Exhibit "C" & uD",
12.11 Notices. Wherever in this Lease it shall be required or permitted that
notice and demand be given or served by either party to this Lease to or on the other,
such notice or demand shall be given or served in writing and shall not be deemed to
have been duly given or served unless in writing, and personally served or forwarded by
certified mail, postage prepaid, addressed, if to Lessor, as specified in Section 1.9. Either
party may change the address set forth herein by written notice by certified mail to the
other. Any notice or demand given by certified mail shall be effective one (1) day
subsequent to mailing.
To City: Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite 1
Palm Springs, CA 92262
To Tenant: West Aviation Services — San Diego dba
Sierra Aviation Group
9247 Archibald Ave.
Rancho Cucamonga, CA 91730
12.12 Waiver. No delay or omission in the exercise of any right or remedy
by a non -defaulting party shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's consent
or approval shall not be deemed to waive or render unnecessary the other party's consent
to or approval of any subsequent act. Any waiver by either party of any default must be
in writing and shall not be a waiver of any other default concerning the same or any other
provision of this Lease.
12.13 Exhibits and Addenda. The Exhibits and Addenda attached to this
Lease are made a part hereof as if fully set forth herein. In the event of a conflict between
the terms and provisions of Addenda and the terms and provisions of this Lease, the
terms and provisions of the Addenda shall prevail.
SIGNATURE PAGE TO FOLLOW
13
55575.38160\34190904.1
SIGNATURE PAGE FOR WEST AVIATION SERVICES — SAN DIEGO, INC. DBA
SIERRA AVIATION GROUP - LEASE AGREEMENT BETWEEN THE CITY OF PALM
SPRINGS AND WEST AVIATION SERVICES, LLC
CITY OF PALM SPRINGS
Approved By:
Justin Clifton V
City Manager
�c G ,'L
Date
A sted By:
r}tfsony Mejia
City Clerk
Approved as to Form:
J re . Bai§p6er
City Attorney
AP'RQV� Di' Cll-t
WEST AVIATION SERVICES — SAN
DIEGO, INC. DBA SIERRA AVIATION
GROUP /
SVhature D'
to
Name
P�,Po-,v7'
Title
Signatu
PpC
Name
E7
Title
Corporations require two notarized
signatures. One signature must be from
Chairman of Board, President, or any
Vice President. The second signature
must be from the Secretary, Assistant
Secretary, Treasurer, Assistant
Treasurer, or Chief Financial Officer.
IN WITNESS WHEREOF, the Parties have entered into this Non -Exclusive Operating and
Lease Agreement as of the day and year first above written.
14
55575.3916OU 4190904.1
EXHIBIT "A"
FA
,- .j 0;;;
13
NNW .««
FiRAA%MT"
&ABLE
PACE-
iZ13 iF
I= all
I
I
55575.3916M341909MA 16
EXHIBIT "B"
ESTOPPEL CERTIFICATE
Lessee:
Lessor:
Date of Lease:
Demised Premises:
To:
The undersigned hereby certifies as follows:
1. The undersigned is the Lessee ("Lessee") under the above -referenced
lease ("Lease") covering the above -referenced premises ("Demised Premises").
2. The Lease constitutes the entire agreement between Lessor and Lessee
with respect to the Demised Premises and the Lease has not been modified, changed,
altered or amended in any respect except as set forth above.
3. The term of the Lease commenced on 20 and,
including any presently exercised option or renewal term, will expire on
20 . Lessee is in possession of the Demised Premises and is the actual occupant
in possession thereof and has not sublet, assigned or hypothecated its leasehold
interest. All improvements to be constructed on the Demised Premises by Lessee have
been completed and accepted by Lessor and any Lessee construction allowances
have been paid in full.
4. As of this date, to the best of Lessee's knowledge, there exists no breach
or default, nor state of facts which, with notice, the passage of time, or both, would
result in a breach or default on the part of either Lessee or Lessor. To the best of
Lessee's knowledge, no claim, controversy, dispute, quarrel or disagreement exists
between Lessee and Lessor.
5. Lessee is currently obligated to pay Monthly Rent in installments of
per month, and such monthly installments have been paid not more than
one month in advance. To the best of Lessee's knowledge, no other rent has been
paid in advance and Lessee has no claim or defense against Lessor under the Lease
and is asserting no offsets or credits against either the rent or Lessor. Lessee has no
claim against Lessor for any security or other deposits except $ which was
paid pursuant to the Lease.
6. Lessee has no option or preferential right to lease or occupy additional
space within the Property of which the Demised Premises are a part. Lessee has no
option or preferential right to purchase all of any part of the Demised Premises nor
55575.381401341909N.1 17
any right or interest with respect to the Demised Premises other than as Lessee under
the Lease. Lessee has no right to renew or extend the term of the Lease except as
set forth in the Lease.
7. Lessee has made no agreements with Lessor or its agent or employees
concerning free rent, partial rent, rebate of rental payments or any other type of rent
or other concession except as expressly set forth in the Lease.
8. There has not been filed by or against Lessee a petition in bankruptcy,
voluntary or otherwise, any assignment for the benefit of creditors, any petition
seeking reorganization or arrangement under the bankruptcy laws of the United
States, or any state thereof, or any other action brought under said bankruptcy laws
with respect to Lessee.
9. All insurance which Lessee is required to maintain under the Lease has
been obtained by Lessee and is in full force and effect and all premiums with respect
thereto have been paid.
Dated this day of , 20
By:
Its:
55575.3816W4190904.1 18
MUM
EXHIBIT "C"
APPENDIX A
14W.11
Appffi t4
DMD9lbepffft== of thisconawk the =ftactar, far itsdt it* asap: n, and sumea*on utmerest
Oweinalbu nd'eaed to as the "eonftacta O agrees a* follows:
1. Compliance Stith Regurlaiions: The oonhactor (hearueaH�er coosuldatst) will +�p1Y'
with the Ads and the Rgplations mlativa to Nan-ehammin boa in FMwaily-aa iste l
ofthe U.S. Ikpartmed of Tnmgx rtmon, Federal Avlatiaa Adm dzhratfon, as they
may be smmded fMM time to time, which we hMM mcogxm ted by wfesmoe and made a part
of this c=hM:t_
2_ Non4lisnimination: The cmhactar, with regard to the We& pnfosmed by it during the:
canhad, will not dLicummate an the grounds of mr, color, or national origin in the selection
and retention of subcadnwWo. including proms of materials and leases of egaipmrsit
The eonhador will not peutidpde directly or and ncdy m the won probibited by the
Ads sad tht Regulations, inchxdin applayment practices when the mnind covets any activity,
p qe cL ar pmgsam *e t forth m App mdm H of 49 OR pact 21
Solicitations for 5nbconftwtl6Indnding Procarements of Materials and Egnipmmi: In all
solidtshmu , odder by competitive bidding or ragohabon made by the emhador for wa k to be
umdw # strbeonhact inebuclingpmeaue:namts of matsisla, or lease's of eaeluipmeat,
each potendiil snbmnlractar or supplier will be whfmbd by the canbachn of the conuacwes
obligations under this coatlact and &a Ads and the Regtdah= relative to NmiAnumunation
can the grounds of xace:, color, or national exuguL
4. Information and Reports: The contractor will provide all infooroation and n pwb mqu imd by
the Ads, the RegWkbo , and dixectivea issued pea uzoa thereto and will pesot seem to Its
books, recmik aecouats, other scums of iuf amation, and its fmrlihm as may be did by
the Recipient or the Federal Aviation Administration to be pertinent to ancestsin eomsplian ce
with:arch Acts, Regulations, and ftatn� White any infirnnation required of a contrae:tor is
m the earchusi" possession of mom who fails or Idases to i muish the man, the
oanhrdw will so cmtify to the Recipient at the Federal Aviation Administration, as
apprapxiate, and will id forth what efforts it has made: to obtain the information.
5. Sanctions for Noncompliance: hi the evrnt of a eombactoes noneamplianoe with the Non
diK m mation provisions of this canhact, the Recipient will impose such cmftd sandiens as it
or the Fedwg Aviation A&aluistralion may ddensine to be appropriate:, mchu hng, but not
united to:
51
55575.38160\34190904.1 19
OV27113 1400.11
Appendix 4
a. wtddoldmg paynmb to the ern backw under &e coubad fmhl the contractor cow;
and/or
b- concealing tesnmenting, or = pmding a cm*mck in whole or in pact
b eorpondm d Prasidom: The am&acbu will imrhade the puyvistioas of paragraphs am &Moab
I& in every adwa akwk imchiding prooaete MU of matmials and lass of equipm uk mdess
by the Actk the end —sned pmsuaot tlaerebo. The cammwiw win tam
aet m Zvi& io any saboombod orproanesoent as the Recipient or the Federai Aviaden
Admlml taliom may dined as a— of a nfimag snsh pmvisiams inch admg sancteams for
ooncamep5aum PrmvidK that if the amI ctor beeomaer involved in, or is dmubned wi& 6tiph m
by a snboomi<scbz, or supplier beanie of such direction, fTm ma r rOOpat the Rscomi to
enter into any litigilian to pQobed the of &e Reri -t hi ad&6wu, the ooatdormay
seque d the United States to eohw mto the litigation to pQotect the iabmeaI of the United &him
53
55575.38160134190904. I 2) ()
08Q7113
EXHIBIT "D"
j0 i,
1400.11
Apperxk 4
Doting the performm= of this canbsct, the eontiadar, for itK its assignees, and summs= m
interest derxeSesred to as ihe-couttaeton agrms to cmvly with the foli wing non-
afa» and aalhosities; inch -ding but not limited to_
went Nan-Discelmimafion AIItharil&s•
■ Tdb Vl of the Cog Rights Act o€1964 (42 US.C. § 2000d etseq., 71 stat. 252),
car the basis of fur, color, nabmW aQWO. and 49 CFR peat 21.
• The Ud& mReloadion Anisbmce and Real Property Acquisition Policies Ad of 197(,
(42 U.S.C. g 4601), (prohibits aotaeir hamwut of persons diapiamd or whose pmpesiy
has b= acquired because ofFeleral or Federal-aidpwgrams and pmje cis);
■ Section 504 of the Rehabilitation Act of 1973, (29 U.S.C.1794 stseq.} as ameaeded,
(prohibit won an the basis of disability), and 49 CFR part 27;
• The Age Ibsaimmatica Ad of 1975, as ameended, (42 U.S.C_ 16101 d seg.), (prohibits
discdmiaafim air the basis of ap);
• Airport sad Airway h gffovmement Ad of 1982, (49 USC 1471. Section 471231 as
amended, (prohobits discrumahon based on race, creed, color, national a dgm, or =Kk
• The Civil Rights Re:tom im Act of IN7, (PL IW209), (Broadened the scope, coverage
and aQ&zbdq of We VI of the Civil Rights Ad of 1964, The Age Discrimiaatim Act
of 1975 and SKfum 504 of the Rdabiltation Act of 1973, by a xpu ding the ildbaition of
the lallof the programs or activities of the
Fedffd4dd reeipie%ft su)-recipientl and anmteactoM wlboder such programs or aetivitiet
we Federally funded or noQ;
Titles Il and M of the Americans with Disabilities Act which prohibit diseYimirnstiori on
the basis of disability m the opmahon of public cation, public and private trae;sportafim
systems, places ofpubhc acoammodatica, and certain testing entities (42 U.S.C. If
12131-12189) as impimxnted by Department of Tnnq rbLhm re gd ations at 49 CFR
parts 37 and 38;
The Federal Aviation Administration's Non tioa statute (49 U.S.C. § 47123)
(mh&b etisaimim on an the basis of race, cedar, national origin, and sear);
Emcdivve Order 129M Federal AM ms to Address EnviEommertal Justice in Mmarity
Populatiams and Low hmane Populations, which emums discz�ae1 apind minority
P%mldiwm by discoura&g PiOpms. Policies, and activities wide disptoportianateiy
high and advme himian hallb orem bumad l effiKh an mbwrky and laugmeom
Pvnbdw
57
55575.38160\34190904.1 21
OW7113
1400.11
Appendoc 4
Flews Order 13166, Impavving Acoesa to Serarres f r 1',rsam vrith Limited &&h
Pkof Cl9mT, and nrmhmg agmep gmdanm national origin &2a=mmbm includes
dMcnmmzb m became of limited Fmg i& proficiency C EM To e� congd=m with
TWO, VT. yoo must take reasonable sus to emnre tint LEP parsons love memmgfil
access to yaw pmgmn (10 F&L Reg- at 74097 to 74100);
• Title IX of the FAwatim Afs of 1972. as smmded, which prohibits you $om
discoanmatmg because of m is okmatk m progum or activities (20 U S.C. 1681 et segj.
59
55575.38160L34190904.1 22
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55575.3816M34190904.1 15
O*QpLM SA�'y
Al City of Palm Springs
c
u H Department of Aviation
Palm Springs Intcrnorion:d Airport
3100 G.Taliquitz Canyon Way,Suite OPC • Palm Springs,California 92262-6966
cqt/FORN�P Tel:(761 )319-3800 • Fax: (760)318-3815 ' Web: www.palmspringsairport.com
Mr.James Mog January 31, 2018
West Aviation Services
DBA Sierra Aviation
2500 E.Airport Drive, Suite 1312
Ontario,CA 91761
RE: PSP Lease Option--Agreement A5958
Dear Mr. Mog:
Per Section 1.3 of the exclusive use space Lease Agreement for operating a
commercial aeronautical activity which Includes porter, wheelchair service and
baggage delivery at Palm Springs International Airport with West Aviatlon Services, Inc.
DBA Sierra Aviation Group (Agreement 5958), the City of Palm Springs has exercised
Option 1: March 1, 2018 through February 28, 2019.
If you have any questions concerning notification, please contact Thomas Nolan A.A.E.,
Executive Director of the Airport at (760)318-3901 or via email at
Thomas.Nolan@ almspringsca.gov
We appreciate the service provided by your firm and look forward to a continued
partnership.
Sincerely,
David H. Ready, Esq-, D.
City Manager r
Cc: West Aviation Service, Inc. -Airport
Post Office Box 2743 0 Palm Springs, California 92263-2743
WEST AVIATION SERVICES, INC.
NON-EXCLUSIVE OPERATING AND LEASE AGREEMENT
FOR TERMINAL USE SPACE AT
PALM SPRINGS INTERNATIONAL AIRPORT
THIS LEASE ("Lease") is made and entered into this 1st day of March, 2015, by and
between the CITY OF PALM SPRINGS, a municipal corporation ("Lessor"), and West
Aviation Services, Inc, DBA Sierra Aviation Group, a California Corporation ("Lessee").
City and Lessee may herein be referred to individually as a "Party' and collectively as
"Parties."
RECITALS:
A. Lessor desires to lease terminal use space at Palm Springs International Airport
("Airport") to operate a Commercial Aeronautical Activity, which includes porter,
wheelchair services and baggage delivery services for airline passengers.
B. City believes that the travelers using the City's airport terminal would benefit from
these airline related services.
NOW THEREFORE, City and Lessee mutually agree as follows:
AGREEMENT
1.0 LEASE SUMMARY. Certain fundamental lease provisions are presented in this
Section and represent the agreement of the parties hereto, subject to further definition
and elaboration in the respective referenced Sections and elsewhere in this Lease. In
the event of any conflict between any fundamental lease provision and the balance of
this Lease, the latter shall control. References to specific Sections are for convenience
only and designate some of the Sections where references to the particular fundamental
lease provisions may appear.
1.1 Demised Premises. The "Demised Premises" shall refer to that
certain property consisting of office space totaling approximately 351 square feet,
located in the Palm Springs International Airport terminal building and more particularly
described in Exhibit "A" attached hereto.
1.2 Lease Term. The term of this lease shall commence on March 1,
2015 and shall terminate on February 28, 2018.
1.3 Extension Option. Two (2), one (1) year options available at the City
& Lessee's discretion.
1.4 Lease Rental Payments. Rental payment due on the first of each
month of the agreement in the amount of $877.50. Current exclusive Use Space Rate
' C1R1ti1N1AL t1iO
FOR AGR£EMF.N T
of $30.00 per square foot per annum. The monthly rent shall be adjusted March Vt of
each year in an amount equal to the increase in the consumer price index for All-Urban
Consumers (CPI-U) in the Los Angeles-Riverside-Orange County, CA for the month of
November preceding the adjustment date as compared to the preceding base index.
City shall send written notice of the applicable rent increase of each successive year
along with documentation evidencing the calculation used to arrive at the figure.
1.5 Extension Options. Extension options in this lease as noted in
Section 1.2.
1.6 Security Deposit. N/A
1.7 Use of Premises. Lessee shall use and occupy the Premises for
the purpose of administrative services/office/employee workspace related to the
Commercial Aeronautical Activities
Lessor: City of Palm Springs
Attn: City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Cc: Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC
Palm Springs, CA 92262
2.0 TERM
2.1 Term. The term of this Lease shall commence on the date
specified in Section 1.3 ("Commencement Date") and shall continue for the period
specified therein unless earlier terminated as provided herein.
2.2 Reserved.
2.3 Time. Time is of the essence of this Lease.
2A Force Maleure. If either party hereto shall be delayed or prevented
from the performance of any act required hereunder by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive governmental laws or
regulations or other cause without fault and beyond the control of the party obligated
(financial inability excepted), performance of such act shall be excused for the period of
the delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay, provided such party provides the other
party written notice of such event within ten (10) days of the commencement of the
prompt payment of any rental or other charge required of Lessee hereunder except as
may be expressly provided elsewhere in this Lease.
2.5 Termination by Lessor. Lessor shall have the right to terminate this
Lease by providing Lessee with at least thirty (30) days advance written notice. If
Lessor terminates this Lease as provided in this Section, Lessee hereby waives any
2
right to receive any other compensation from Lessor, including, but not limited to, the
value of Lessee's leasehold interest, loss of goodwill and relocation benefits, inverse
condemnation or the taking of property and Lessor shall have no obligation to pay
Lessee therefor.
2.6 Holding Over. Any holding over with the consent of Lessor,
express or implied, shall be construed to be a tenancy from month-to-month, cancelable
upon thirty (30) days' written notice, and at a monthly rental equal to one hundred and
fifty percent (150%) of the monthly rental in effect at the expiration of the contract
services agreement.
2.7 Termination by Lessee. Lessee shall have the right to terminate
this Lease by providing Lessor with at least thirty (30) days advance written notice. If
Lessee terminates this Lease as provided in this Section, Lessee hereby waives any
right to receive any other compensation from Lessor, including, but not limited to, the
unamortized value of Lessee's leasehold improvements, Lessee's leasehold interest,
loss of goodwill and relocation benefits, inverse condemnation or the taking of property
and Lessor shall have no obligation to pay Lessee therefor.
3.0 RENTAL
3.1 Monthly Rental. Lessee shall pay to Lessor, during the term of this
Lease from and after the Commencement Date, as monthly rental ("Monthly Rental") for
the Premises the sum specified in Section 1.4 hereof, which sum shall be paid in
advance on the first day of each calendar month. In the event the Commencement
Date does not occur on the first day of a calendar month, the Lessee shall pay the
rental for the fractional month on the Commencement Date on a per diem basis
calculated on a thirty (30) day month. All rental to be paid by Lessee to Lessor shall be
in lawful money of the United States of America and shall be paid without deduction or
offset, prior notice or demand, at the address designated in Section 1.7 hereof.
3.2 Cost of Living Adjustment. Cost of living adjustment during the
agreement as specified in Section 1.4.
3.3 Additional Rental. For the purposes of this Lease, all monetary
obligations of Lessee under this Lease, including but not limited to, insurance
premiums, property taxes, maintenance expenses, late charges and utility costs shall be
deemed to be additional rental.
3.4 Real Property Taxes. Unless Lessee qualifies for an exemption, in
addition to all rentals herein reserved, Lessee shall pay, at the election of Lessor, either
directly to the taxing authority or to Lessor, annual real estate taxes and assessments
levied upon the Premises (including any possessory interest taxes), as well as taxes of
every kind and nature levied and assessed in lieu of, in substitution for, or in addition to,
existing real property taxes. Such amount shall be paid on the date that is twenty (20)
days prior to the delinquent date or, if Lessor receives the tax bill, ten (10) days after
receipt of a copy of the tax bill from Lessor, whichever is later. Even though the term of
this Lease has expired and Lessee has vacated the Premises, when the final
3
determination is made of Lessee's share of such taxes and assessments, Lessee shall
immediately pay to Lessor the amount of any additional sum owed.
3.5 Personal Property Taxes. Unless Lessee qualifies for an
exemption from property taxes or possessory interest taxes due to its non-profit status,
during the term hereof, Lessee shall pay, prior to delinquency all taxes assessed
against and levied upon fixtures, furnishings, equipment and all other personal property
of Lessee contained in the Premises, and when possible Lessee shall cause said
fixtures, furnishings, equipment and other personal property to be assessed and billed
separately from the real property of Lessor.
3.6 Utilities. All cost of water, gas, heat, electricity, and sewer, and all
other services used in, upon, or about the Premises shall be paid by the City. Lessee
shall pay all telephone, internet, cable television, satellite, broadband and other
telecommunications services.
3.7 Late Payment. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rental or other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which is extremely difficult to
ascertain. Such costs include, but are not limited to, processing and accounting
charges. Accordingly, any payment of any sum to be paid by Lessee not paid within ten
(10) days of its due date, shall be subject to a five percent (5%) late charge. Lessor and
Lessee agree that this late charge represents a reasonable estimate of such costs and
expenses and is fair compensation to Lessor for its loss suffered by such late payment
by Lessee. Sixty (60) days before the anniversary date each year the City shall notify
the Lessee of any outstanding delinquency, which must be cured prior to the
anniversary date or the City may exercise its right of termination under section 2.5 and
terminate the lease.
3.8 Interest. Any sum to be paid pursuant to the terms of this Lease
not paid when due shall bear interest from and after the due date until paid at a rate
equal to three percent (3%) over the reference rate being charged by Bank of America,
N.A. from time to time during such period, so long as the rate does not exceed the
maximum non-usurious rate permitted by law in which case interest shall be at the
maximum non-usurious rate allowed by law at the time the sum became due.
4.0 USE OF THE PREMISES
4.1 Permitted Use. The Lessor hereby leases to Lessee and Lessee
leases from Lessor the Premises with appurtenances as defined herein, for the purpose
of conducting thereon only the use specified in Section 1.7 of this Lease and for no
other use. No signs posters or similar devices shall be erected, displayed or
maintained by the Lessee in view of the general public without advance written notice of
the Airport Executive Director.
4.2 Prohibited Use. The operations of the Lessee shall be conducted
in an orderly and proper manner and so as not to annoy, disturb, or be offensive to
others at the Airport. No solicitation of the public is allowed. Tenant shall provide
uniforms and its employees shall wear badges or other means of identification.
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4.3 Compliance with Laws. Lessee shall, at his own cost and expense,
comply with all of the requirements of all municipal, state and federal authorities now in
force or which may hereafter be in force pertaining to the use of the Premises, and shall
faithfully observe in said use all municipal ordinances, including, but not limited to, the
General Plan and zoning ordinances, state and federal statutes, or other governmental
regulations now in force or which shall hereinafter be in force. Lessee's violation of law
shall constitute an incurable default under this Lease. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action or proceeding against
Lessee, whether Lessor is a party thereto or not, that Lessee has violated any such
order or statute in said use, shall be conclusive of that fact as between the Lessor and
Lessee.
Lessee shall not engage in any activity on or about the Premises that violates any
Environmental Law, and shall promptly, at Lessees sole cost and expense, take all
investigatory and/or remedial action required or ordered by any governmental agency or
Environmental Law for clean-up and removal of any contamination involving any
Hazardous Material created or caused directly or indirectly by Lessee. The term
"Environmental Law" shall mean any federal, state or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environmental conditions on,
under or about the Demised Premises, including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii) California Health
and Safety Code Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic
Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.;
(v) California Health and Safety Code Section 25359.7; (vi) California Health and Safety
Code Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections
1317 et seq.; (viii) California Water Code Section 1300 et seq.; and (ix) California Civil
Code Section 3479 et seq., as such laws are amended and the regulations and
administrative codes applicable thereto. The term "Hazardous Material" includes,
without limitation, any material or substance which is (i) defined or listed as a
"hazardous waste", "extremely hazardous waste", "restrictive hazardous waste" or
"hazardous substance" or considered a waste, condition of pollution or nuisance under
the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii)
asbestos; and/or (iv) substances known by the State of California to cause cancer
and/or reproductive toxicity. It is the intent of the parties hereto to construe the terms
"Hazardous Materials" and "Environmental Laws" in their broadest sense. Lessee shall
provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement
Act of 1986, California Health and Safety Code Section 25249.5 et seq. Lessee shall
provide prompt written notice to Lessor of the existence of Hazardous Substances on
the premises and all notices of violation of the Environmental Laws received by Lessee.
4.4 Operations for the benefit of Public. Lessee agrees to operate the
Demised Premises for the use and benefit of the Public, to make available all Lessee
facilities to the public, without discrimination on the grounds of sex, race, color, or
national origin. Nothing herein contained shall be construed to grant or authorize the
granting of an exclusive right within the meaning of Section 308 of the Federal Aviation
5
Act of 1958, as amended.
4.5 Public Facilities, Ingress, Egress and Quiet Eniovment. City agrees
that Lessee, upon payment of the rental hereunder and performing the covenants of the
Lease, may quietly have, hold and enjoy the Demised Premises during the term of the
Lease, and that Tenant shall have the non-exclusive right to use, in common with
others, the public at the Airport and Tenant shall have a reasonable right of ingress and
egress from the Demised Premises and the public facilities for its employees, visitors
and customers.
4.7 Hours of Business. Subject to the provisions of Section 7.0 hereof,
Lessee shall continuously during the entire term hereof conduct and carry on Lessee's
business in the Premises and shall keep the Premises open for business and cause
Lessee's business to be conducted therein during the Lessee's usual business hours of
each and every business day.
4.8 Rules and Regulations. Lessee shall faithfully observe and comply
with the rules and regulations that Lessor shall from time to time promulgate and/or
modify. The rules and regulations, if any, are attached hereto as Exhibit "B" ("Rules and
Regulations") and Exhibit "C" (Lease Provisions of the Federal Aviation Administration
and Transportation Security Administration). Any amendment or modification of the
Rules and Regulations shall be binding upon the Lessee upon delivery of a copy of
such amendment or modification to Lessee. Lessor shall not be responsible to Lessee
for the nonperformance of any said rules and regulations by any other Lessees or
occupants. The Rules and Regulations shall apply and be enforced as to all Lessees in
the Premises on a uniform basis.
5.0 ALTERATIONS AND REPAIRS
5.1 Alterations and Fixtures. Lessee shall not make, or suffer to be
made, any alterations to the Premises, or any part thereof, without the prior written
consent of Lessor. Any alterations to the Premises, except movable furniture and trade
fixtures, shall become at once a part of the realty and shall at the expiration or earlier
termination of this Lease belong to Lessor. Lessee shall not in any event make any
changes to the exterior of the Premises. Any such alterations shall be in conformance
with the requirements of all municipal, state, federal, and other governmental
authorities, including requirements pertaining to the health, welfare or safety of
employees or the public and in conformance with reasonable rules and regulations of
Lessor. Any damage occasioned by such removal shall be repaired at Lessee's
expense so that the Premises can be surrendered in a good, clean and sanitary
condition as required by Section 5.2 hereof. Any and all fixtures and appurtenances
installed by Lessee shall conform with the requirements of all municipal, state, federal,
and governmental authorities, including requirements pertaining to the health, welfare,
or safety of employees or the public. Upon completion of construction of the alterations,
Lessee shall submit to Lessor evidence satisfactory to Lessor of the cost of said
alterations ("Improvement Costs"),
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5.2 Maintenance and Repair. Lessee shall, subject to Lessor's
obligations hereinafter provided, at all times during the term hereof, and at Lessee's
expense, keep, maintain and repair the Premises, and other improvements within the
Premises in good and sanitary order, condition, and repair (except as hereinafter
provided). Lessor should be notified immediately of any necessary maintenance and
repair of any store front, doors, window casements, walls, glazing, heating and air
conditioning system, plumbing, pipes, electrical wiring and conduits. Lessee hereby
waives all right to make repairs at the expense of Lessor, and Lessee hereby waives all
rights provided for by the Civil Code of the State of California to make said repairs. By
entering into the Premises, Lessee shall be deemed to have accepted the Premises as
being in good and sanitary order, condition and repair. Lessee agrees on the last day of
said term, or sooner termination of this Lease, to surrender the Premises with
appurtenances, in the same condition as when received and in a good, clean and
sanitary condition, reasonable use and wear thereof and damage by fire, act of God or
by the elements excepted. Lessee shall periodically sweep and clean the sidewalks
adjacent to the Premises, as needed. Upon Lessee's possession of the Premises,
Lessee shall be deemed to have accepted the Premises as being in good condition and
repair.
Lessee agrees that it will not, nor will it authorize any person to, go onto
the roof of the building of which the Premises are a part without the prior written consent
of Lessor. Said consent will be given only upon Lessor's satisfaction that any repairs
necessitated as a result of Lessee's action will be made by Lessee at Lessee's expense
and will be made in such a manner so as not to invalidate any guarantee relating to said
roof.
5.3 Free from Liens. Lessee shall keep the Premises free from any
liens arising out of any work performed, material furnished, or obligation incurred by
Lessee or alleged to have been incurred by Lessee.
6.0 INSURANCE AND INDEMNIFICATION
6.1 Insurance. Prior to its ability to access the Demised Premises,
Lessee will provide City with proof of insurance, at Tenant's sole cost and expense, to
remain in full force and effect during the entire term of this lease. The following policies
of insurance shall be maintained:
6.2 Insurance Provided by Lessee.
Comprehensive or Commercial Form General Liability Insurance shall include the
following minimal limits:
a. General Liability including operations, products and completed
operations $1,000,000 each occurrence for bodily injury, personal injury
and property damage/$2,000,000 aggregate
b. Automobile $1,000,000 each accident; $1,000,000 uninsured
motorist
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C. Workers Compensation $1,000,000 each accident/$1,000,000
each employee for disease.
d. Excess Liability/Umbrella Form $2,000,000.
6.3 An Additional Insured Endorsement is required for the General Liability
Insurance policy naming the City, its officers, employees, and agents as additional
insured on the policy.
6.4 The policies shall provide for a 30 day notice to the City prior to
termination, cancellation, or change.
6.5 The general liability and excess liability/umbrella policies must be
endorsed to provide that each policy shall apply on a primary and noncontributing basis
in relation to any insurance or self-insurance, primary or excess, maintained by or
available to the City or its officials, employees, and agents.
6.6 The Workers Compensation policy shall contain the insurer's waiver of
subrogation (or waiver of right of recovery) in favor of City, its elected officials, officers,
employees, and agents.
6.7 If, in the City's opinion, the minimum limits of the insurance herein
required have become inadequate during the period of this Agreement, the
Concessionaire shall increase such minimum limits by reasonable amounts on request
of the City provided that said coverage is available at standard commercial rates.
7.0 ABANDONMENT AND SURRENDER
7.1 Abandonment. Lessee shall not vacate or abandon the Premises at
any time during the term of this Lease. If Lessee shall abandon, vacate or surrender
the Premises or be dispossessed by process of law, or otherwise, any personal property
belonging to Lessee and left on the Premises shall be deemed to be abandoned, at the
option of Lessor, except such property as may be mortgaged to Lessor.
7.2 Surrender of Lease. The voluntary or other surrender of this Lease
by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the
option of Lessor, terminate all or any existing subleases or sub-tenancies, or may, at the
option of Lessor, operate as an assignment to it of any or all of such subleases or sub-
tenancies.
8.0 DAMAGE AND DESTRUCTION OF PREMISES. In the event of (a) partial or total
destruction of the Premises during the term of this Lease which requires repairs to the
Premises, or (b) the Premises being declared unsafe or unfit for occupancy by any
authorized public authority for any reason other than Lessee's act, use or occupation,
which declaration requires repairs to the Premises, Lessor shall forthwith make said
repairs provided Lessee gives to Lessor thirty (30) days written notice of the necessity
therefor. No such partial destruction (including any destruction necessary in order to
s
make repairs required by any declaration made by any public authority) shall in any way
annul or void this Lease except that Lessee shall be entitled to a proportionate reduction
of Monthly Rental while such repairs are being made, such proportionate reduction to
be based upon the extent to which the making of such repairs shall interfere with the
business carried on by Lessee in the Premises. However, if during the last two (2) years
of the term of this Lease the Premises are damaged as a result of fire or any other
insured casualty to an extent in excess of twenty five percent (25%) of the then
replacement cost (excluding foundations), Lessor may within thirty (30) days following
the date such damage occurs, terminate this Lease by written notice to Lessee. If
Lessor, however, elects to make said repairs, and provided Lessor uses due diligence
in making said repairs, this Lease shall continue in full force and effect, and the Monthly
Rental shall be proportionately reduced while such repairs are being made as
hereinabove provided. Nothing in the foregoing to the contrary withstanding, if the
Premises or said building is damaged or destroyed at any time during the term hereof to
an extent of more than twenty-five percent (25%) of the then replacement cost
(excluding foundations) as a result of a casualty not insured against, Lessor may within
thirty (30) days following the date of such destruction terminate this Lease upon written
notice to Lessee. If Lessor does not elect to terminate because of said uninsured
casualty, Lessor shall promptly rebuild and repair the Premises and/or the building and
the Monthly Rental shall be proportionately reduced while such repairs are being made
as hereinabove provided. If Lessor elects to terminate this Lease, all rentals shall be
prorated between Lessor and Lessee as of the date of such destruction. In respect to
any partial or total destruction (including any destruction necessary in order to make
repairs required by any such declaration of any authorized public authority) which
Lessor is obligated to repair or may elect to repair under the terms of this Section,
Lessee waives any statutory right it may have to cancel this Lease as a result of such
destruction.
9.0 SUBLETTING. For the purposes of this lease, subletting shall not be allowed.
10.0 DEFAULT
10.1 Default by Lessee. The occurrence of any one (1) or more of
the following events shall constitute a default and breach of this Lease by Lessee: (a)
the failure to pay any rental or other payment required hereunder to or on behalf of
Lessor more than three (3) days after written notice from Lessor to Lessee that Lessee
has failed to pay rent when due; (b) the failure to perform any of Lessee's agreements
or obligations hereunder (exclusive of a default in the payment of money) where such
default shall continue for a period of thirty (30) days after written notice thereof from
Lessor to Lessee which notice shall be deemed to be the statutory notice so long as
such notice complies with statutory requirements; (c) the vacation or abandonment of
the Premises by Lessee; (d) the making by Lessee of a general assignment for the
benefit of creditors; (e) the filing by Lessee of a voluntary petition in bankruptcy or the
adjudication of Lessee bankruptcy; (f) the appointment of a receiver to take possession
of all or substantially all the assets of Lessee located at the Premises or of Lessee's
leasehold interest in the Premises; (g) the filing by any creditor of Lessee of an
involuntary petition in bankruptcy which is not dismissed within sixty (60) days after
9
filing; or (h) the attachment, execution or other judicial seizure of all or substantially all
of the assets of Lessee or Lessee's leasehold where such an attachment, execution or
seizure is not discharged within sixty (60) days. Any repetitive failure by Lessee to
perform its agreements and obligations hereunder, though intermittently cured, shall be
deemed an incurable default. Two (2) breaches of the same covenant within a sixty (60)
day period, a notice having been given pursuant to (a) or (b) above for the first breach,
or three (3) of the same or different breaches at any time during the term of this Lease
for which notices pursuant to (a) or (b) above were given for the first two (2) breaches
shall conclusively be deemed to be an incurable repetitive failure by Lessee to perform
its obligations hereunder.
In the event of any such default or breach by Lessee, Lessor may at any
time thereafter, without further notice or demand, rectify or cure such default, and any
sums expended by Lessor for such purposes shall be paid by Lessee to Lessor upon
demand and as additional rental hereunder. In the event of any such default or breach
by Lessee, Lessor shall have the right (i) to continue the lease in full force and effect
and enforce all of its rights and remedies under this Lease, including the right to recover
the rental as it becomes due under this Lease, or (ii) Lessor shall have the right at any
time thereafter to elect to terminate the Lease and Lessee's right to possession
thereunder.
10.2 No Waiver. Acceptance of rental hereunder shall not be deemed a
waiver of any default or a waiver of any of Lessor's remedies.
10.3 Lessor's Default. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no event later
than thirty (30) days after written notice by Lessee to Lessor and to the holder of any
first mortgage or deed of trust covering the Premises whose name and address shall
have theretofore been furnished to Lessee in writing, specifying wherein Lessor has
failed to perform such obligation; provided, however, that if the nature of Lessor's
obligation is such that more than thirty (30) days are required for performance then
Lessor shall not be deemed in default if Lessor commences performance within a thirty
(30) day period and thereafter diligently prosecutes the same to completion. In no event
shall Lessee have the right to terminate this Lease as a result of Lessor's default and
Lessee's remedies shall be limited to damages and/or an injunction.
11.0 CONDEMNATION. In the event a condemnation or a transfer in lieu thereof
results in a taking of any portion of the Premises, Lessor may, or in the event a
condemnation or a transfer in lieu thereof results in a taking of twenty-five percent
(25%) or more of the Premises, Lessee may, upon written notice given within thirty (30)
days after such taking or transfer in lieu thereof, terminate this Lease. Lessee shall not
be entitled to share in any portion of the award and Lessee hereby expressly waives
any right or claim to any part thereof. Lessee shall, however, have the right to claim and
recover, only from the condemning authority (but not from Lessor), any amounts
necessary to reimburse Lessee for the cost of removing stock and fixtures. If this Lease
is not terminated as above provided, Lessor shall use a portion of the condemnation
award to restore the Premises.
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12.0 MISCELLANEOUS
12.1 Reservation of Right to Modify Property. Lessor hereby reserves
the right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce,
reconfigure, enclose and/or otherwise alter all or any portion of the Premises
(collectively "Modifications"), in such manner and at such time or times, throughout the
term of this Lease, as Lessor may, in its sole and absolute discretion, deem to be in the
best interests of the Property. Such Modifications may include, without limitation, the
right to construct new buildings on the Property for additional uses, to remove, renovate,
repair, add to, modernize or otherwise alter the building in which the Premises are
situated as well as other buildings, facilities, structures, malls, walkways, landscaping,
parking and common areas or other areas within the Property. In connection with any
and all such Modifications, Lessor may enter the Premises to the extent reasonably
required by Lessor to pursue and complete such Modifications. In addition, Lessor may
temporarily close portions of the parking and common areas and cause temporary
obstructions in connection with any Modifications. Lessee agrees that under no
circumstances shall the Modifications as to any portion of the Property or the
construction activity that takes place in the course of making the Modifications, or any
aspect thereof, including Lessor's entry into the Premises, constitute an eviction or
partial eviction of Lessee or a breach of Lessee's right to quiet enjoyment or of any
other provision of this Lease, nor entitle Lessee to damages, injunctive relief or other
equitable relief, nor entitle Lessee to any abatement or reduction in the Monthly Rental,
additional rental or other charges or sums due under this Lease; provided Lessor uses
reasonable efforts to mitigate any adverse effects on Lessee caused by the
Modifications.
12.2 Entry and Inspection. Lessee shall permit Lessor and his agents to
enter into and upon the Premises at all reasonable times for the purpose of inspecting
the same or for the purpose of maintaining the Premises as required by the terms of this
Lease or for the purpose of posting notices of non-liability for alterations, additions or
repairs.
12.3 Estoppel Certificate. If, as a result of a proposed sale, assignment,
or hypothecation of the Premises or the land thereunder by Lessor, or at any other time,
an estoppel certificate shall be requested of Lessee, Lessee agrees, within ten (10)
days thereafter, to deliver such estoppel certificate in the form attached hereto as
Exhibit "C" addressed to any existing or proposed mortgagee or proposed purchaser,
and to the Lessor. Lessee shall be liable for any loss or liability resulting from any
incorrect information certified, and such mortgagee and purchaser shall have the right to
rely on such estoppel certificate and financial statement.
12.4 Jurisdiction and Venue. The parties hereto agree that the State of
California is the proper jurisdiction for litigation of any matters relating to this Lease, and
service mailed to the address of Lessees set forth herein shall be adequate service for
such litigation. The parties further agree that Riverside County, California is the proper
place for venue as to any such litigation and Lessee agrees to submit to the personal
jurisdiction of such court in the event of such litigation.
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12.5 Partial Invalidity. If any term, covenant, condition or provision of this
Lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remainder of the provisions hereof shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereof.
12.6 Successors in Interest. The covenants herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties hereto; and all of the parties
hereto shall be jointly and severally liable hereunder.
12.7 No Oral Agreements. This (i) Lease covers in full each and every
agreement of every kind or nature whatsoever between the parties hereto concerning
this Lease, (ii) supersedes any and all previous obligations, agreements and
understandings, if any, between the parties, oral or written, and (iii) merges all
preliminary negotiations and agreements of whatsoever kind or nature herein. Lessee
acknowledges that no representations or warranties of any kind or nature not
specifically set forth herein have been made by Lessor or its agents or representatives.
12.8 Authority. In the event that Lessee is a corporation or a partnership,
each individual executing this Lease on behalf of said corporation or said partnership,
as the case may be, represents and warrants that he or she is duly authorized to
execute and deliver this Lease on behalf of said corporation or partnership, in
accordance with a duly adopted resolution of the Board of Directors, if a corporation, or
in accordance with the Partnership Agreement, if a partnership, and that this Lease is
binding upon said corporation or partnership in accordance with its terms. Lessee
represents and warrants to Lessor that the entering into this Lease does not violate any
provisions of any other agreement to which Lessee is bound.
12.9 Relationship of Parties. The relationship of the parties hereto is that
of Lessor and Lessee, and it is expressly understood and agreed that Lessor does not
in any way or for any purpose become a partner of Lessee in the conduct of Lessee's
business or otherwise, or a joint venture with Lessee, and that the provisions of this
Lease and the agreements relating to rent payable hereunder are included solely for the
purpose of providing a method whereby rental payments are to be measured and
ascertained.
12.10 Nondiscrimination. Lessee herein covenants by and for itself, its
heirs, executors, administrators and assigns and all persons claiming under or through
it, and this Lease is made and accepted upon and subject to the following conditions:
that there shall be no discrimination against or segregation of any person or group of
persons on account of race, sex, marital status, color, creed, national origin or ancestry,
in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the
Premises herein leased, nor shall the Lessee itself, or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
Lessees, or vendors in the Premises.
12
12.11 Notices. Wherever in this Lease it shall be required or permitted
that notice and demand be given or served by either party to this Lease to or on the
other, such notice or demand shall be given or served in writing and shall not be
deemed to have been duly given or served unless in writing, and personally served or
forwarded by certified mail, postage prepaid, addressed, if to Lessor, as specified in
Section 1.9. Either party may change the address set forth herein by written notice by
certified mail to the other. Any notice or demand given by certified mail shall be effective
one (1) day subsequent to mailing.
To City: Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite OFC
Palm Springs, CA 92262
To Tenant: West Aviation Services, Inc. dba
Sierra Aviation Group
9247 Archibald Ave.
Rancho Cucamonga, CA 91730
12.12 Waiver. No delay or omission in the exercise of any right or remedy
by a non-defaulting party shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's
consent or approval shall not be deemed to waive or render unnecessary the other
party's consent to or approval of any subsequent act. Any waiver by either party of any
default must be in writing and shall not be a waiver of any other default concerning the
same or any other provision of this Lease.
12.13 Exhibits and Addenda. The Exhibits and Addenda attached to this
Lease are made a part hereof as if fully set forth herein. In the event of a conflict
between the terms and provisions of Addenda and the terms and provisions of this
Lease, the terms and provisions of the Addenda shall prevail.
SIGNATURE PAGE TO FOLLOW
13
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
"CITY"
City of Palm Springs
Date: .a -lT/ B
David H. Ready
City Manager ���?0+r"� LICIiYC0UNUL
a-LLas L'±0%
APPROVED AS TO FORM: ATTEST
By: jl�11t4
y By:
Dougl s C. Holland, lames Thompson,
City Attorney City Clerk
APPROVED BY CITY COUNCIL:
Date: Agreement No.
Corporations require two notarized signatures. One signature must be from Chairman of Board,President,or any Vice President. The
second signature must be from the Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer.
/CONSULTANT NAME:
AIX.— Check one_Individual_Partnership X Corporation
Address
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By By
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14 Revised: 6/16/10
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Mr. James Mog December 30,2013
West Aviation Services
DBA Sierra Aviation
2500 E. Airport Drive, Suite 1312
Ontario, CA 91761
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RE: PSP Lease Option-Agreement A5958
Dear Mr. Mog:
i
Per Section 1.3 of the exclusive use space Lease Agreement for operating a
commercial aeronautical activity which includes porter,wheelchair service and
baggage delivery at Palm Springs International Airport with West Aviation Services, Inc.
DBA Sierra Aviation Group (Agreement 5958),the City of Palm Springs has exercised
Option 2: February 1,2014 through January 31,2015.
If you have any questions concerning notification, please contact Thomas Nolan A.A.E.,
Executive Director of the Airport at(760)318-3901 or via email at
Thomas.NolanCtAnalmsoringsca gov
We appreciate the service provided by your firm and look forward to a continued
partnership.
Sincerely,
David H. Ready, Esq., PhD.
City Manager
Cc: West Aviation Service, Inc. - Airport
Post Office Box 2743 • Palm Springs, California 92263-2743
OF PALM S,o •
City of Palm Springs
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• Palm Springs International Airport
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�-44 fFO R 140P Tel: (760)318-3800 • Fax: (760)318-3815 • Web:www.palmspriDgsairport.com
Mr. James Mog January 3, 2012
West Aviation Services
DBA Sierra Aviation
2500 E. Airport Drive, Suite 1312
Ontario, CA 91761
RE: PSP Lease Option—Agreement A5958
Dear Mr. Mog:
Per Section 1.3 of the exclusive use space Lease Agreement for operating a
commercial aeronautical activity which includes porter, wheelchair service and
baggage delivery at Palm Springs International Airport with West Aviation Services, Inc.
DBA Sierra Aviation Group (Agreement 5958),the City of Palm Springs has exercised
Option 1: February 1, 2012 through January 31, 2013.
If you have any questions concerning notification, please contact Thomas Nolan A.A.E.,
Executive Director of the Airport at(760)318-3901 or via email at
Thomas.Nolanftalmsaringsca gov
We appreciate the service provided by your firm and look forward to a continued
partnership.
Sincerely,
David H. Ready, E D.
City Manager
Cc: West Aviation Service, Inc. -Airport
Post Office Box 2743 0 Palm Springs, California 92263-2743
" WEST AVIATION SERVICES, INC
NON-EXCLUSIVE OPERATING AND LEASE AGREEMENT
FOR EXCLUSIVE USE SPACE
AT PALM SPRINGS INTERNATIONAL AIRPORT
THIS LEASE ("Lease") is made and entered into this FIRST day of FEBRUARY 2010, by and
between the CITY OF PALM SPRINGS, a charter city and California municipal corporation ("City"), and
WEST AVIATION SERVICES, INC. DBA SIERRA AVIATION GROUP, a California corporation
("Tenant"). City and Tenant may hereinafter be referred to individually as a "Party" and collectively as
"Parties".
RECITALS
A. Tenant desires to lease exclusive use space at Palm Springs International Airport ("Airport") to
operate a Commercial Aeronautical Activity, which includes porter, wheelchair services and baggage
delivery services for airline passengers.
B, City believes that travelers using the City's airport terminal would benefit from these airline
related services.
NOW THEREFORE, City and Tenant mutually agree as follows:
AGREEMENT
Section 1. LEASE SUMMARY
Certain fundamental Lease provisions are presented in this Section and represent the agreement
of the parties hereto, subject to further definition and elaboration in the respective referenced Sections
and elsewhere in this Lease. In the event of any conflict between any fundamental Lease provision and
the balance of this Lease, the latter shall control.
1.1 Demised Premises. The "Demised Premises" shall refer to Exclusive Use Space located
in the airport terminal' and more particularly described in Exhibit "A" attached hereto.
Demised Premises consists of 351 square feet.
1.2 Lease Term. The term of this Lease shall commence on February 1, 2010 and shall
terminate on January 31, 2012.
1.3 Extension Options. Two one-year options available at the City & Tenant's discretion.
++ 1.4 Lease Rental Payments. Rental payment due on the first of each month of the agreement
in the amount of $754.36. Current Exclusive Use Space Non-Signatory Rate -
$25.79/SF/Annum. Year 2 and 2 one-year options: The monthly rent shall be automatically
adjusted February 1" of each term year in an amount equal to the increase in the
Consumer Price Index for All Urban Consumers (CPI-U) in the Las Angeles-Riverside-
Orange County, CA for the month of November preceding the adjustment date as
compared to the preceding base index. The CPI-U for November 2009 shall be the first
base (100%). City shall send Concessionaire written notice of the applicable rent increase
of each successive year along with documentation evidencing the calculation used to
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 1 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
arrive at that figure no less than thirty (30) days prior to the date the increase becomes
effective.
1.5 Security Deposit. $1,000.00 US Dollars
1.6 Use of Demised Premises. Demised Premises may be utilized for office/employee
workspace related to the permitted Commercial Aeronautical Activities. No customer
baggage will be stored in the Demised Premises.
1.7 Days/ Hours of Operation: Seven days per week from 0500 - 0100
Section 2. TERM
2.1 Term. The term of this Lease shall commence on the date specified in Section 1.2 ("Lease
Term") and shall continue for the period specified therein unless earlier terminated as
provided herein.
2.2 Termination Prior to Expiration Of Term. This Section shall govern any termination of this
Agreement. The City reserves the right to terminate this Agreement at any time, with or
without cause, upon thirty (30) days' written notice to Tenant, except that where
termination is due to the fault of the Tenant, the period of notice may be such shorter time
as may be determined by the City. In addition, the Tenant reserves the right to terminate
this Agreement at any time with or without cause, upon thirty (30) days' written notice to
City, except that where termination is due to the fault of the City, the period of notice may
be such shorter time as the Tenant may determine. Upon receipt of any notice of
termination, Tenant shall immediately cease all services hereunder, except such as may
be specifically approved by the Contract Officer. If termination of this agreement is
undertaken by the City without cause, City shall reimburse Tenant for Tenant's actual
construction cost of any new improvements installed subsequent to the execution of this
Lease and pursuant to the provisions of Section 5.1 of this Lease, less depreciation at the
rate of 20% per year from date of this Lease, regardless of when such improvements are
installed. The reimbursement provided above shall be Tenant's sole and exclusive remedy
and form of compensation, costs or damages, including Relocation Assistance benefits
(Sec. 7260 et sea. of the California Government Code), due to termination, re-entry or
acquisition by City.
Section 3. RENTAL.
3.1 Monthly Rental. Tenant shall pay to City, during the term of this Lease from and after the
Commencement Date as monthly rental for the Demised Premises the sum specified in
Section 1 A hereof, which sum shall be paid in advance on the first day of each calendar
month. All rent to be paid by Tenant to City shall be in lawful money of the United States
of America and shall be paid without deduction or offset, prior notice or demand at the
address designated in Section 16.12 hereof.
3.2 Additional. Rental. For purposes of this Lease, all monetary obligations of Tenant under
this Lease, including, but not limited to, insurance premiums, property taxes (if any),
maintenance expenses, late charges and utility costs shall be deemed additional rental.
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 2 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
3.3 Real Property Taxes. In addition to all rentals herein reserved, Tenant shall pay, at the
election of City, either directly to the taxing authority or to City, any annual real estate taxes
and assessments levied upon the Demised Premises (including any possessory interest
taxes), as well as taxes of every kind and nature levied and assessed in lieu of, in
substitution for, or in addition to, existing real property taxes, if any. (Tenant specifically
acknowledges that the interest granted under this Lease may be subject to possessory
interest taxes.) Such amount shall be paid on the date that is twenty (20) days prior to the
delinquent date or, if City receives the tax bill, ten (10) days after receipt of a copy of the
tax bill from City, whichever is later. Even though the term of this Lease has expired and
Tenant has vacated the Demised Premises, when the final determination is made of
Tenant's share of such taxes and assessments, Tenant shall immediately pay to City the
amount of any additional sum owed.
3.4 Personal Property Taxes. During the term hereof Tenant shall pay prior to delinquency all
taxes (if any) assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Demised Premises, and when possible
tenant shall cause said fixtures, furnishings, equipment and other personal property to be
assessed and billed separately from the real property of City.
3.5 Utilities. All cost for water, gas, heat or electricity used in connection with the heating or air
conditioning furnished to the Demised Premises shall be paid by City. Tenant shall pay
before delinquency all charges for telephone service, trash removal and all other services
and utilities used in, upon, or about the Demised Premises by Tenant.
3.6 Late Payment. Tenant hereby acknowledges that late payment by Tenant to City of rental
or other sums due hereunder will cause City to incur costs not contemplated by this Lease,
the exact amount of which is extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges. Accordingly, any payment of any sum
to be paid by Tenant not paid within five (5) days of its due date shall be subject to a five
percent (5%) late charge. City and Tenant agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair compensation to City for its
loss suffered by such late payment by Tenant.
3.7 Interest. Any sum to be paid pursuant to the terms of this Lease not paid when due shall
bear interest from and after the due date until paid at a rate equal to three percent (3%)
over the reference rate being charged by Bank of America, N.A. from time to time during
such period so long as the rate does not exceed the maximum non-usurious rate permitted
by law in which case interest shall be at the maximum non-usurious rate allowed by law at
the time the sum became due.
3.8 Security Deposit. Tenant shall provide a security deposit in the amount specified in
Section 1.5 hereto. Said deposit shall be paid at the commencement of Lease Term.
Upon termination of this Lease and provided that all amounts due to the City are paid, and
the Demised Premises has been returned to the City in the same condition as received by
the Tenant, the deposit shall be returned to the Tenant. In the event fees are not paid or if
the Demised Premises are damaged, City shall have the right, but not the obligation to
draw upon the deposit to cover said costs. Upon termination of this Lease any balance of
the deposit not drawn against shall be paid to the Tenant.
Section 4. USE OF THE PREMISES.
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 3 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
4.1 Permitted Uses. Tenant may use the Demised Premises as office space and employee
work space. This space will not be a general public access area. No signs, posters or
similar devices shall be erected, displayed or maintained by the Tenant in view of the
general public without advance written approval of the Executive Director—Aviation.
4.2 Operational Standards_ The operations of the Tenant, its employees, invitees and those
doing business with it shall be conducted in an orderly and proper manner and so as not to
annoy, disturb, or be offensive to others at the Airport. No solicitation of the public outside
the Demised Premises is allowed. Tenant shall provide and its employees shall wear or
carry badges or other suitable means of identification. The badges or means of
identification shall be subject to the written approval of Executive Director — Aviation or
his/her designee The City shall have the right to object to Tenant regarding the demeanor,
conduct or appearance of Tenant's employees, invitees and those doing business with it,
whereupon Tenant will take steps necessary to remove the cause of objection.
Tenant shall select and appoint a manager for its operation within the Demised Premises.
Said person must be a qualified and experienced manager, vested with full power and
authority, and shall so inform City in respect to the method, manner and conduct of the
operation at the Airport. The manager shall be available during regular business hours
and at all times during his/her absence, a subordinate shall be in charge and available at
the Demised Premises.
Tenant shall be responsible for the conduct, demeanor and appearance of its officers,
agents, employees and representatives. Customer service personnel and attendants shall
be trained by Tenant to render a high degree of courteous and efficient service, and it shall
be the responsibility of the Tenant to maintain close supervision over said personnel to
assure the rendering of a high standard of service to the public and the patrons of the
Counter concession. Upon objection from the Executive Director — Aviation or his/her
designee concerning the conduct, demeanor or appearance of such persons, Operator
shall take all steps necessary to remove the cause of the objection.
Tenant, its agents and employees shall conduct and maintain a friendly, cooperative,
though competitive relationship with its competitors operating in the Airport. Tenant shall
not engage in open, notorious and public disputes, disagreements or conflicts tending to
deteriorate the quality of service of its competitor or be incompatible to the best interest of
the public at the Airport. The City shall have the right to resolve all such disputes,
disagreements, or conflicts and its determination shall be final.
4.3 Compliance with Laws. Tenant shall, at its sole cost and expense, comply with all of the
requirements of all municipal, state, and federal authorities now in force or which may
hereafter be in force pertaining to the use of the Demised Premises, and shall faithfully
observe in said use all municipal ordinances, including, but not limited to, the General Plan
and zoning ordinances, state and federal statutes, or other governmental regulations now
in force or which shall hereinafter be in force.
Tenant shall not engage in any activity on or about the Demised Premises that violates any
Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all
investigatory and/or remedial action required or ordered by any governmental agency or
Environmental Law for clean-up and removal of any contamination involving any
Hazardous Material created or caused directly or indirectly by Tenant. The term
"Environmental Law" shall mean any federal, state or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environmental conditions on, under
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 4 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
or about the Demised Premises, including, without limitation, (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
Sections 9601 at seq.; (ii) the Resource Conservation and Recovery Act of 1976.
("RCRA"), 42 U.S.C. Sections 6901 at M.; (iii) California Health and Safety Code Sections
25 100 at seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California
Health and Safety Code Section 25249.5 at seq.; (v) California Health and Safety Code
Section 25359.7, (vi) California Health and Safety Code Section 25915; (vii) the Federal
Water Pollution Control Act, 33 U.S.C. Sections 1317 at Seq.; (viii) California Water Code
Section 1300 at seq.; and (ix) California Civil Code Section 3479 at seq., as such laws are
amended and the regulations and administrative codes applicable thereto. The term
"Hazardous Material" includes, without limitation, any material or substance which is (i)
defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive
hazardous waste" or "hazardous substance" or considered a waste, condition of pollution
or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or
fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of California to
cause cancer and/or reproductive toxicity. It is the intent of the parties hereto to construe
the terms "Hazardous Materials" and "Environmental Laws" in their broadest sense.
Tenant shall provide all notices required pursuant to the Safe Drinking Water and Toxic
Enforcement Act of 1986, California Health and Safety Code Section 25249.5 at seq.
Tenant shall provide prompt written notice to City of the existence of Hazardous
Substances on the premises and all notices of violation of the Environmental Laws
received by Tenant.
4.4 Operations for Benefit of Public. Tenant agrees to operate the Demised Premises for the
use and benefit of the public, to make available all Tenants' airport facilities to the public,
without discrimination on the grounds of sex, race, color or national origin. Nothing herein
contained shall be construed to grant or authorize the granting of an exclusive right within
the meaning of Section 308 of the Federal Aviation Act of 1958, as amended.
4.5 Public Facilities Ingress, Egress and Quiet En'o menL City agrees that Tenant, upon
payment of the rental hereunder and performing the covenants of the Lease, may quietly
have, hold and enjoy the Demised Premises during the term of the Lease, and that Tenant
shall have the non-exclusive right to use, in common with others, the public facilities at the
Airport and Tenant shall have a reasonable right of ingress to and egress from the
Demised Premises and the public facilities for its employees, visitors and customers. City
shall provide parking at no cost for two (2) Tenant employee vehicles in the Airport
Employee Parking Lot.
4.6 Rules and Regulations. Tenant shall faithfully observe and comply with the rules and
regulations that City shall from time to time promulgate and/or modify. Any amendment or
modification of the Airport Rules and Regulations shall be binding upon the Tenant upon
delivery of a copy of such amendment or modification to Tenant. City shall not be
responsible to Tenant for the nonperformance of any said rules and regulations by any
other tenants or occupants. The Airport Rules and Regulations shall apply and be enforced
as to all tenants in the Demised Premises on a uniform basis.
Section 5. ALTERATIONS AND REPAIRS.
5.1 Improvements, Alterations and Fixtures. Tenant shall not make or suffer to be made, any
alterations or improvements to the Demised Premises, or any part thereof, without the prior
written consent of City, and any alterations or improvements to the Demised Premises,
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 5 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
except movable furniture, and trade fixtures, shall become at once a part of the realty and
shall at the expiration or earlier termination of this Lease belong to City free and clear of
any liens or encumbrances. Tenant shall not in any event make any changes to the
exterior of the Demised Premises, if any. Any such alterations or improvements shall be in
conformance with the requirement of all municipal, state, federal, and other governmental
authorities, including requirements pertaining to the health, welfare or safety of employees
of the public and in conformance with reasonable rules and regulations of City. City may
require that any such alterations or improvements be removed prior to the expiration of the
term hereof. Any removal of alterations or improvements or furniture and trade fixture shall
be at Tenant's expense and accomplished in a good and workmanlike manner. Any
damage occasioned by such removal shall be repaired at Tenant's expense so that the
Demised Premises can surrender in a good, clean and sanitary condition as required by
Section. 5.2 hereof. All fixtures, improvements and appurtenances installed by Tenant shall
conform with the requirements of all municipal, state, federal, and governmental authorities
including requirements pertaining to the health, welfare, or safety of employees or the
public.
5.2 Maintenance and Repair. Tenant shall, subject to Citys obligations hereinafter provided, at
all times during the term hereof, and at Tenant's sole cost and expense, keep, maintain
and repair the Demised Premises and other improvements within the Demised Premises in
good and sanitary order, condition, and repair (except as hereinafter provided). Tenant
shall also at its sole cost and expense be responsible for any alterations or improvements
to the Demised Premises necessitated as a result of the requirement of any municipal,
state or federal authority. By entering into the Demised Premises, Tenant shall be deemed
to have accepted the Demised Premises as being in good and sanitary order, condition
and repair, and Tenant agrees on the last day of said term or sooner termination of this
Lease to surrender the Demised Premises with appurtenances, in the.same condition as
when received and in a good, clean and sanitary condition, reasonable use and wear
thereof and damage by fire, act of God or by the elements excepted.
In transporting products, trash, and refuse associated with the operation of the Demised
Premises, Tenant shall use only carts or conveyances that are sealed and leak proof.
5.3 Free From Liens. Tenant shall keep the Demised Premises free from any liens arising out
of any work performed, material furnished, or obligation incurred by Tenant or alleged to
have been incurred by Tenant.
5.4 Cit s Reserved Rights.
(a) Airport Development and 5afet . City reserves the right to further develop or improve
the aircraft operating area of the Airport as it sees fit, and City reserves the right to take
any action it considers necessary to protect the aerial approaches of the Airport against
obstruction, together with the right to prevent Tenant from erecting or permitting to be
erected any building or other structure of the Demised premises which, in the opinion of
City, would limit the usefulness of the Airport or constitute a hazard to aircraft.
(b) Lease to United States. During the time of war or national emergency, City shall have
the right to lease the landing area or any part thereof to the United States Government for
military or naval use, and, if such lease is executed, the provisions of this Lease insofar as
they are inconsistent with the provisions of the lease to the Government shall be
suspended and, in that event, a just and proportionate part of the rent hereunder shall be
abated, and the period of such closure shall be added to the term of this Lease so as to
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 6 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
extend and postpone the expiration thereof unless the Tenant otherwise elects to terminate
this Lease.
Section 6. INSURANCE AND INDEMNIFICATION.
6.1 Insurance. Prior to its ability to access the Demised Premises, Tenant will provide City
with proof of insurance, at Tenant's sole cost and expense, to remain in full force and
effect during the entire term of this Lease. The following policies of insurance shall be
maintained:
6.1.1 Workers' Compensation Insurance. Workers' Compensation Insurance in an
amount not less that ONE MILLION DOLLARS ($1,000,000) combined single limit for all
damages arising from each accident or occupational disease.
6.1.2 Commercial General Liability.Commercial General Liability Insurance written on a
per-occurrence and not a claims-made basis with a combined single limit of at least ONE
MILLION DOLLARS ($1,000,000) bodily injury and property damage including coverages
for contractual liability, personal injury, independent contractors, broad form property
damage, products and completed operations. TWO MILLION DOLLARS ($2,000,000)
aggregate coverage.
6.1.3 Automobile Liability Insurance- A policy of comprehensive automobile liability
insurance written on a per-occurrence basis in an amount not less than ONE MILLION
DOLLARS ($1,000,000) combined single limit covering all owned, non-owned, leased, and
hired vehicles used in connection with operations occurring on the Demised Premises.
6.1.4 Other Insurance. Such other policies of insurance including, but not limited to,
casualty insurance, business interruption insurance, and fidelity insurance, as may be
required by the nature of operations.
6.1.5 General Provisions. The above insurance shall be primary and no other
insurance maintained by the City will be called upon to contribute to a loss. All polices
except Workers Compensation shall have the City named as an additional insured.
Workers Compensation insurance of the Tenant shall contain a waiver-of-subrogation
clause in favor of the City, its officers, directors, officials, agents, employees, volunteers,
and representatives- All policies of insurance required to be obtained by Tenant hereunder
shall be issued by insurance companies authorized to do business in California and must
be rated no less than A-, VII or better in Best's Insurance Guide. Prior to engaging in any
operations hereunder, Tenant shall deliver to City certificate(s) of insurance and original
endorsements evidencing the coverages specified above. Such policies shall not be
cancelled or materially altered to the detriment of City or Tenant without the insurer
providing City with thirty (30) days' written notice.
6.2 Indemnification by Tenant. Tenant shall indemnify, defend (with counsel designated by
City), protect and hold harmless City, its officers, directors, officials, agents, employees,
volunteers, and representatives from and against any and all claims, demands, judgments,
actions, damages, losses, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees and court costs) arising at any time directly or indirectly from or in
connection with (i) any default in the performance of any obligation by Tenant to be
performed under the terms of this Lease, (ii) Tenant's use of the Demised Premises, or (iii)
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 7 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
the conduct of Tenant's business or any activity, work or things done, permitted or suffered
by Tenant in or about the Demised Premises, except to the extent caused by City's sole
negligence or willful misconduct. The obligations of Tenant under this Article 6 shall survive
the expiration or earlier termination of this Lease.
Tenant, as a material part of the consideration to City, hereby assumes all risk of damage
to the Demised Premises, including, without limitation, injury to persons in, upon or about
the Demised Premises during Tenant's use of the Demised Premises, except where such
damage or injury is caused by the sole negligence or willful misconduct of the City or its
officers, directors, officials, agents, employees, volunteers, and representatives. Tenant
hereby waives all claims with respect thereof against City. City shall not be liable for any
injury to the Tenant, or injury to or death of any of Tenant's officers, directors, officials,
agents and or employees, or injury to or death of any other person in or about the Demised
Premises from any cause except to the extent caused by the sole negligence or willful
misconduct of the City or its officers, directors, officials, agents, employees, volunteers,
and representatives. .
6.3 Assumption of All Risks and Liabilities. Tenant assumes all risks and liabilities arising out
of any and all use of the Demised Premises by Tenant or,Tenant's officers, directors,
officials, agents and or employees except where such damage or injury is caused by the
sole negligence or willful misconduct of the City or. its officers, directors, officials, agents,
employees, volunteers, and representatives.
Section 7. ABANDONMENT AND SURRENDER.
7.1 Abandonment. Tenant shall not vacate or abandon the Demised Premises at any time
during the term of this Lease; and if Tenant shall abandon, vacate or surrender the
Demised Premises or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the Demised Premises shall be deemed to be
abandoned, at the option of City, except such property as may be mortgaged to City.
7.2 Surrender of Lease. The voluntary or other surrender of this Lease by Tenant or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all
provisions of existing lease. Tenant shall not assign or sublease.
Section 8. DAMAGE AND DESTRUCTION OF DEMISED PREMISES. In the event of (a) partial or
total destruction of the Demised Premises during the term of this Lease, which requires
repairs to the Demised Premises, or (b) the Demised Premises being declared unsafe or
unfit for occupancy by any authorized public authority for any reason, which declaration
requires repairs to the Demised Premises, Tenant shall forthwith make said repairs, except
where such damage or injury is caused by the sole negligence or willful misconduct of the
City or its officers, directors, officials, agents, employees, volunteers, and representatives .
No such damage or destruction (including any destruction necessary in order to make
repairs required by any declaration made by any public authority) shall in any way annul or
void this Lease. Tenant shall promptly clean and remove all debris resulting from said
damage or destruction. Tenant shall take preliminary steps toward restoring the
improvements with thirty (30) days of the casualty and such improvements shall be
restored within a reasonable time thereafter. The Demised Premises shall be restored to
the condition they existed immediately before said casualty.
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i
Section 9. ASSIGNMENT.
Tenant shall not assign this Lease for the Demised Premises, or any interest therein. Any
assignment without the prior written consent of City shall be void, shall constitute a
material breach of this Lease, and shall, at the option of City, terminate this Lease.
Section 10. ENCUMBRANCE.
10.1 This Lease, or any right to or interest in, or any of the improvements on the Demised
premises, may only be encumbered with the written approval of City. Any such approved
encumbrance shall be subject to the covenants, conditions and restrictions set forth herein
and to all rights of City.
102 Any encumbrance must be confined to the leasehold interest of Tenant and shall not affect
in any way the City's interest in the land. The encumbrance shall provide that the proceeds
from fire or extended coverage insurance shall be used for the repair or rebuilding of the
leasehold improvements and not to repay any part of the outstanding mortgage. Tenant
agrees to furnish, as requested, any financial statements or analyses pertinent to the
encumbrance that City may deem necessary to justify the amount, purpose and terns of
said encumbrance.
10.3 In the event of default by the Tenant of the terms of an approved encumbrance, the
encumbrancer may exercise any rights provided in such approved encumbrance provided
that, before any sale of the leasehold estate, whether by power of sale or foreclosure, the
encumbrancer shall give to City notice of the same character as is required to be given to
Tenant by such encumbrancer pursuant to the loan documents and/or the laws of the State
of California and City shall be given an additional thirty (30) days in which to cure the
default after the time for Tenant to cure has expired.
10.4 If any sale under the approved encumbrance occurs, whether by power of sale or
foreclosure, and the purchaser at such sale is the encumbrancer, the encumbrancer may
sell and assign this Lease without any further consent of City provided that the assignee
shall agree in such assumption by the assignee, the encumbrancer shall be released from
all future obligations of the Tenant under this Lease. If a sale under the approved
encumbrance occurs, and the purchaser is a party other than the encumbrancer, said
purchaser, as successor in interest to the Tenant shall be bound by all the terms and
conditions of this Lease and the purchaser shall assume in writing the obligations of
Tenant hereunder.
10.5 If notice of such sale shall be given and the defaults or any of them upon which such notice
of sale is based shall then continue, City shall have the right to correct such defaults at any
time prior to the date of sale or foreclosure, and to terminate such leasehold upon paying
to the encumbrancer the balance of the encumbrance as hereinafter defined.
10.6 "Balance of encumbrance" shall mean the amount of principal remaining unpaid on a note
secured by a trust deed or mortgage of an interest plus accrued and past due interest
thereon and expenses incurred by the lender in connection with foreclosure including by
not limited to, fire insurance premiums, title insurance expenses, recording fees, appraisal
fees, credit reports and any tax reporting services and additional expenditures paid by the
lender on additions, betterments and rehabilitations of improvements on the property
encumbered pursuant to plans approved by City, which consent may not be unreasonably
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Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
withheld, and other expenses necessary to place the improvements in marketable
condition, such adjusted principal to be paid in case or, at the option of City, 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 as set forth in said note.
10-7 City agrees to provide encumbrancer written notice of any default by Tenant under this
Lease and an opportunity to cure at the time notice of such default is provided to Tenant
and give encumbrancer thirty (30) days to cure a monetary default or forty-five (45) days to
cure a non-monetary default; provide, however, that if such non-monetary default cannot
be cured within such period of forty-five (45) days, encumbrancer shall have a reasonable
time to cure such default provided that encumbrancer commences to cure within said forty-
five (45) days and diligently prosecutes the cure to completion. Such period shall include
the time to complete a foreclosure action if encumbrancer needs to gain possession of the
Demised Premises to cure said default by Tenant.
Section 11- DEFAULT AND REMEDIES.
11.1 In the event Tenant fails to perform any obligations under this lease and after the
expiration of any cure period, City may terminate Tenant's right to possession of the Site
by any lawful means, in which case the lease shall terminate.
11.2 Neither party shall be deemed to be in default in the performance of any obligation
required to be performed by it hereunder unless and until it has failed to commence an
action to cure said failure within ten (10) days after written notice by the other party
specifying in reasonable detail the nature and extent of any such failure and completes
said cure within thirty (30) days or such longer period as may be permitted by the other
party; provided that if the default is an immediate danger to the health, safety and general
welfare, such immediate action may be necessary.
Section 12 ENFORCEMENT OF LAW
12.1 Governing Law. This Lease shall be governed by, interpreted under, and construed and
enforced in accordance with the laws of the State of California.
12.2 Compliance with Law. All services rendered hereunder shall be provided in accordance
with all ordinances, resolutions, statutes, rules, and regulations of the City and any
Federal, State, or local governmental agency having jurisdiction in effect at the time
service is rendered.
12.3 Waiver. The waiver of any breach of any provision hereunder by City or Tenant shall not
be deemed a waiver of any preceding or subsequent breach hereunder. No failure or
delay of any Party in the exercise of any right given hereunder shall constitute a waiver
thereof nor shall any partial exercise of any right preclude further exercise thereof.
12.4 Severability- If any paragraph, section, sentence, clause or phrase contained in this
Lease shall become illegal, null or void, against public policy, or otherwise unenforceable,
for any reason, or held by any court of competent jurisdiction to be illegal, null or void,
against public policy, or otherwise unenforceable, the remaining paragraphs, sections,
sentences, clauses or phrases contained in this Lease shall not be affected thereby.
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12.5 Termination Prior to Expiration of Term. The parties agree that if Tenant: (i) files a petition
in bankruptcy, (ii) is adjudicated bankrupt, (iii) if a petition in bankruptcy is filed against
Tenant and not discharged within thirty (30) days, (iv) if Tenant becomes insolvent or
makes an assignment for the benefit of its creditors or an arrangement pursuant to any
bankruptcy law, or (v) if a receiver is appointed for Tenant or its business during the Term
of this Lease, City may terminate this Lease upon twenty-four (24) hours' written notice to
Tenant.
12.6 Attorney's Fees. If either party to this Lease is required to initiate or defend or made a
party to any action or proceeding in any way connected with this Lease, the prevailing
party in such action or proceeding in addition to any other relief, which may be granted,
shall be entitled to reasonable attorney's fees and costs.
Section 13. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION.
13.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be
personally liable to the Tenant, or any successor in interest, in the event of any default or
breach by the City or for any amount, which may become due to the Tenant or to its
successor, or for breach of any obligation of the terms of this Lease.
13.2 Conflict of Interest. No officer or employee of the City shall have any financial interest,
direct or indirect, in this Lease nor shall any such officer or employee participate in any
decision relating to this Lease which effects his financial interest or the financial interest of
any corporation, partnership or association in which he is, directly or indirectly, interested,
in violation of any State statute or regulation. Tenant warrants that it has not paid or given
and will not pay or give any third party any money or other consideration for obtaining this
Lease.
13.3 Standard Covenant Against Discrimination. Tenant covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin, or ancestry in the
performance of this Lease. Tenant shall take affirmative action to insure that applicants are
employed and that employees are treated during employment without regard to their race,
color, creed, religion, sex, marital status, national origin, or ancestry.
13.4 Americans With Disabilities Act. In its operation of Demised Premises, Tenant shall
comply with the Americans with Disabilities Act and all federal regulations applicable under
the Act.
Section 14. FAA REQUIRED PROVISIONS.
14.1 Tenant, as a part of the consideration for this Lease, covenants and agrees "as a covenant
running with its interest in property" that in the event facilities are constructed, maintained,
or otherwise operated on the Airport or the Demised Premises for a purpose for which a
Department of Transportation ("DOT") program or activity is extended or for another
purpose involving the provision of similar services or benefits, the Tenant shall maintain
and operate such facilities and services in compliance with all other requirements imposed
pursuant to Title 49, Code of Federal Regulations DOT, Part 23, Nondiscrimination in
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Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
' Federally Assisted Programs of the Department of Transportation-Effectuation of Title VI of
the Civil Rights Act of 1964, as such regulations may be amended from time to time.
14.2 This Lease is subject to the requirements of the U.S. Department of Transportation's
regulations, 49 CFR Part 23. The Tenant or contractor agrees that it will not discriminate
against any business owner because of the owner's race, color, national origin or sex in
connection with the award or performance of any concession agreement, management
contract, or subcontract, purchase or lease agreement or other agreement covered by 49
CFR part 23.
14.3 The Tenant or contractor agrees to include the above statements in any subsequent
concession agreement or contract covered by 49 CFR Part 23, that it enters and causes
those businesses to similarly include the statements in further agreements.
14.4 In the event of a breach of the covenants specified in Subsection 14.1 and 14.2 of this
Lease, City shall have the right to terminate this Lease and to reenter and repossess the
Demised Premises and the facilities thereon and hold the same as if said Lease had never
been made or issued. This provision does not become effective until the procedures of
Title 49, Code of Federal Regulations, Part 23 are followed and completed, including the
expiration of any appeal rights.
14.5 Tenant shall furnish its services on a fair, equal, and not unjustly discriminatory basis to all
users thereof and it shall charge fair, reasonable, and not unjustly discriminatory prices for
its services; provided that Tenant may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar type of price reductions to volume
purchases or other rational, reasonable basis. Non-compliance with this provision shall
constitute a material breach of this Lease and in the event of such non-compliance, City
shall have the right to terminate this Lease and any interest in property created without
liability or at the election of the City or the United States either or both Governments shall
have the right to judicially enforce this provision.
14.6 Tenant agrees that it shall insert the above five provisions in any lease or contract by
which Tenant grants a right or privilege to any person, partnership, or corporation to render
services to the public on the Demised Premises pursuant to this Lease. Nothing in this
provision shall be construed as waiving any obligations or requirements of the Tenant
pursuant to Subsection 4.3 of this Lease or abrogate the rights of the City pursuant to such
subsection.
14.7 This Lease shall be subordinate to the provisions and requirements of any existing or
future agreement between the City and the United States relative to the development,
operation, or maintenance of the Airport.
14.8 This Lease, and all provisions hereof, shall be subject to whatever right the United States
Government now has or in the future may have or acquire, affecting the control, operation,
regulation, and taking over of the Airport or the exclusive or non-exclusive use of the
Airport by the United States during a time of war or national emergency.
Section 15 AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE (ACDBE)
15.1 ACDBE Contract Goal: This agreement does not have an ACDBE Contract Goal. There is
no concession revenue generated — airline funded services only. The ACDBE
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Nan-Exclusive Operating & Lease Agreement
Palm Springs International Airport
requirements do not apply to this space lease agreement. This is not an Airport
Concession per ACDBE regulations.
Section 16 MISCELLANEOUS PROVISIONS
16.1 Headings. The headings of this Lease are for purposes of reference only and shall not
limit or define the meaning of the provisions of this Lease.
16.2 Counterparts. This Lease may be signed in any number of counterparts, each of which will.
be deemed an original, but all of which together will constitute one instrument.
16.3 Labor Disputes. Tenant shall give prompt notice to City of any actual or potential labor
dispute which delays or may delay performance of this Lease.
16.4 California Law. This Lease shall be construed and interpreted both as to validity and to
performance of the parties in accordance with the laws of the State of California. Legal
actions concerning any dispute, claim or matter arising out of or in relation to this Lease
shall be instituted in the Superior Court of the County of Riverside, State of California, or
any other appropriate court in such county, and Tenant covenants and agrees to submit to
the personal jurisdiction of such court in the event of such action.
16.5 Disputes. In the event of any dispute arising under this Lease, the injured party shall notify
the injuring party in writing of its contentions by submitting a claim therefore. The injured
party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and
completes the cure of such default within thirty (30) days after service of the notice, or such
longer period as may be permitted by the injured party; provided that if the default is an
immediate danger to the health, safety and general welfare, such immediate action may be
necessary. Compliance with the provisions of this Section shall be a condition precedent to
termination of this Lease for cause and to any legal action, and such compliance shall not
be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's or the Tenant's right to terminate this
Lease without cause pursuant to Subsection 5.5(c).
16.6 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Lease, the rights and remedies of the parties are
cumulative and the exercise by either party of one or more of such rights or remedies shall
not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.
16.7 Legal Action. In addition to any other rights or remedies, either party may take legal
action, in law or in equity, to cure, correct or remedy any default, to recover damages for
any default, to compel specific performance of this Lease, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Lease.
16.8 Reservation of City Rights. City reserves the right, but shall not be obligated to Tenant, to
maintain the Demised Premises and keep in good repair the Airport or the Demised
Premises. The City further reserves the right to direct and control all activities of Tenant
consistent with the provisions of this Lease.
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Palm Springs International Airport
16.9 Interpretation. The terms of this Lease shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of the
authorship of this Lease or any other rule of construction which might otherwise apply.
16.10 Integration: Amendment, It is understood that there are no oral leases between the parties
hereto affecting this Lease and this Lease supersedes and cancels all previous
negotiations, arrangements, leases and understandings, if any, between the parties, and
none shall be used to interpret this Lease. This Lease may be amended at any time by the
mutual consent of the parties by an instrument in writing.
16.11 Corporate Authority- The persons executing this Lease on behalf of the parties hereto
warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Lease on behalf of said party, (iii) by so executing this Lease, such
party is formally bound to the provisions of this Lease, and (iv) the entering into this Lease
does not violate any provision of any other Lease to which said party is bound.
16,12 Notice-Any notice required or permitted to be given hereunder shall be in writing and
signed by the Party, officer or agent of the Party to whom it is to be sent, and shall be
either: (1) personally delivered to the Party to whom it is to be sent, or (2) sent via
overnight courier services, or (3) sent via certified or registered mail, return receipt
requested, postage prepaid to the respective addresses, or such other addresses as the
Parties may specify in writing:
To City: Palm Springs International Airport
Attn: Executive Director-Airport
3400 East Tahquitz Canyon Way, Suite OFC
Palm Springs, California 92262-6966
To Tenant: West Aviation Services, Inc. dba
Sierra Aviation Group
9247 Archibald Avenue
Rancho Cucamonga, CA 91730
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Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above.
ATTEST, CITY OF PALM SPRING
a municipal corporation
/// City Clerk City Mana�
VAPPROVED AS T FOR APPROVED BY CUCOUNCIL
By:
City Att mey
ONTRACTOR: Check one: Individual Partnership Corporation
Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President, or any Vice
President:AN V. Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer.
By: rE*gjnatu
iggnature(notari ed re otanzed)
Name: ^�jI/�l"� �15/ Name: 'AKltts iryoun"c�iws-T4s
Title: /� .�^lL�.cLJ _._ Title: c= ZF l_
Stale of State of 9lEr�L-�-•
County of z " a �.� f G: cs' County of
On`�, r'3 / before me, l 0n` :3 /'before me,
personally appeared q_,-n c.,? X'fl.?i personally appeared '< f Txr7l `, 'tA- ✓9 �
who proved to me on the basis of satisfactory who proved to me on basis of satisfactory
evidence to be the persons')whose name(o evidence to be the person(o whose name(O
falagisubscribed to the within instrument is/am subscribed to the within instrument
and acknowledged to me that he/gl el" and acknowledged to me that he/ahwAhoe
executed the same in his/her4mk authorized executed the same in his/herAi authorized
capacity(j*, and that by his/her/their signatureo on capacity0es),and that by hisHar AIWf signature(o on
the instrument the persono or the entity upon behalf the instruments the persona or the entity upon behalf
of which the persona acted, executed the instrument. Of which the person(o acted, executed the instrument.
I certify under PENALTY OF PERJURY I certify under PENALTY OF PERJURY
under the laws of the State of California that under the laws of the State of California that
the foregoing paragraph is true and correct. the foregoing paragraph is true and correct.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary Seal: Yn .::,r.; _A',dtLARIA S l Notary Seal: MARGARFT CANOEL4M 16B012B Comrrh6onl16l0121
Notary Public •CWIorr11c1 Notary RAAc -CaRoM
San Bernardino Coats San lemordkro Co^
ICd'ML d lal 1ff1WGWM F AS 201
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Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
w "
Exhibit "A"
Exclusive Use Space
See Attached
West Aviation Business Services, Inc. dba Sierra Aviation Group Page 16 of 16
Non-Exclusive Operating & Lease Agreement
Palm Springs International Airport
EXHIBIT "A"
EXCLUSIVE USE SPACE
351 SO. FT.
i T 117
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