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CqL FORN�P• CITY COUNCIL STAFF REPORT
DATE: February 18, 2015 CONSENTAGENDA
SUBJECT: WEST AVIATION SERVICES, INC. NON-EXCLUSIVE OPERATING AND
LEASE AGREEMENT FOR EXCLUSIVE USE SPACE
FROM: David H. Ready, City Manager
BY: Department of Aviation
SUMMARY
This action will consider a lease for West Aviation Services; DBA Sierra Aviation Group,
which currently provides contract porter, wheelchair, and baggage delivery services for
airlines, for space in the ticketing area curbside at Palm Springs International Airport.
RECOMMENDATION:
1. Approve Non-Exclusive Operating and Lease Agreement for Exclusive Use
Space with West Aviation Services, Inc., DBA Sierra Aviation Group, for 351 SF
effective March 1, 2015, through February 28, 2018, with (two) one-year options
at $877.50 per month.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
The majority of airlines operating at the Palm Springs International Airport contract with
a specialized outside provider for wheelchair, porter, and baggage delivery services to
accommodate passengers. For nearly a decade, West Aviation Services, DBA Sierra
Aviation Group, has been under contract with the airlines and is leasing space at the
Airport, for space adjacent to the ticketing area. Sierra uses this leased space for
administrative and employee operations. Also, included in the contract renewal is the
City's 30-day "termination for convenience" clause, should the airlines discontinue their
contractual relationship with Sierra.
FISCAL IMPACT:
The current rental rate is $27.48 per square foot; the new rate will be $30.00 per square
foot, which represents a 9.2% increase. This agreement is expected to generate
approximately $10,530 in annual rent for the Airport in the first year, with a Consumer
Price Index (CPI) adjustment in each following year of the agreement.
ITEM NO.
City Council Staff Report
February 18, 2015—Page Two
West Aviation Services Lease Agreement
Thomas Nolan, A.A.E. David H. Ready,
Executive Director, Airport City Manager
Attachments: Lease Agreement
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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
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of $30.00 per square foot per annum. The monthly rent shall be adjusted February 15t
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.
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 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
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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
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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
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Act of 1958, as amended.
4.5 Public Facilities, Ingress, Egress and Quiet Enioyment. 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
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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 anyone (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
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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 Ri-ght 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.
11 13
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 14
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
r3 15
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
"CITY"
City of Palm Springs
Date: By:
David H. Ready
City Manager
APPROVED AS TO FORM: ATTEST
By: By:
Douglas C. Holland, James 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 j
second signature must be from the Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer.
CONSULTANT NAME:
Check one_Individual_Partnership_Corporation
Address
By By
Signature(Notarized) Signature(Notarized)
14 Revised:6/16/10
720669.1 16
CALIFOMIA ALL431IM+OSE AMNOWLEDGMENT CIVIL CODE§1180
A ray public or ollwr adder ceepterirg des ewohcaa vertae outy do KW*ty of the ndividal wtc aigned the
dogNrtMR be which this cerdhcels a etached.and not da tuddrhwas,accuracy,a vetday of del doacnwe_
state of CaHomia )
County of )
On before na.
Data tdwe Insert Narne and 77ft of the OftW
pareoradly appeared
NameN of b3g ww"
who proved to me.a1 the bass at aatisfacLory evidence to be the person(a) whose nos) Were
wed to the within iabnnnerd end aclanowfedgad to me dud halsheAhey executed the same n
hraftw beer authorized cepacdy(ies).and that by hidher/lheir signature(s)on the instrument the pereal(c),
or the antiiy upon hehatf of which the persons)actedt,executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the state of Califanis that the faegang puraWaph
to true and correct
WITNESS my hard and official asal
sigrators
3igru dxa of Notary FblAcc
Place Notary suet Above
OP7TONAL
Though tMs aecWn fa cIabonsf.complaft this YADmadon can deter aReratan of the doarment or
daudrdenf resNachment of this form to an unirdended docurm nt
Description of Attactad Doaannerd
Me or Type of Document DccurrNMA Data:
Nurnber of Pagea: 81¢ter(s) Other Than Named Above:
Capeaty(iea)Claimed by E'tgrar(a)
signora Name: swMee Name:.
❑corporate Offices—TOOK. ❑Corporals Officer—T'dtehx
❑partner- O limited ❑General ❑Partner- O Lanited ❑General
❑Individual ❑Attomey in Fed ❑Individual ❑Attorney in Fad
❑Trustee ❑Guardian or Coraarva[ar ❑Tnaae ❑Guardian or C onsa actor
❑OfiW. o O hw.
signer Is Rapneaading: signer Is Representing-
d2014 Nattond Nulwy Asaacidim•w .NabcndNohry.wg-1-8(XFIA NDTNiy(14=4784MM ftM#5W7
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