HomeMy WebLinkAbout05688 - AMERICANOS USA LLC TRAIN STATION LEASE AGR January 14, 2016 \\�
Via Certified Mail
City of Palm Springs, California
Attention: City Manager
P. O. Box 2743
Palm Springs, CA 92263
Re: Lease dated November 13, 2008 (the"Lease"), between Greyhound Lines,
Inc., successor-in-interest to Americanos USA, LLC (`Tenant"), and The City of
Palm Springs (`Landlord"), for the lease of property commonly known as the
Palm Springs Train Station on Garnet Station Road (the"Property")
NOTICE OF TERMINATION OF LEASE
Dear City Manager:
This letter serves as Tenant's notice of termination of the Lease effective as of February
13, 2016 (the "Termination Date"). Please note that rent and any other sums due under
the Lease for February will be prorated accordingly.
Greyhound intends to vacate the Property on or before the Termination Date. Randal
Levingston, Greyhound's Real Estate Manager, will be your contact for any close out
issues related to the termination of the Lease. Randal can be contacted by e-mail at
randal.tevingston@greyhound.com, or by phone at 214-849-8389. Please let Randal
know about any issues involved in Greyhound's surrender and return of the premises at
your earliest convenience.
Sincerely,
G//RE��YOUND LIN�E--S((, INC.
William J. es er, Chief Financial Officer
cc: Diana Shay(via E-Mail to Diana.Shay@palmsprings-ca.gov)
PO BOX 660362, DALLAS, TEXAS 75266 1 TELEPHONE 214-849-8000
Kathie Hart
From: Diana Shay
Sent: Thursday,January 14, 2016 9:00 AM
To: Kathie Hart;Jay Thompson
Cc: Lauri Aylaian
Subject: FW:Greyhound Palm Springs,CA lease termination
Attachments: 1715_001.pdf
Importance: High
FYI please see attached. I have advised Finance (Debbie Rivera)that billing for the month of February will need to be
prorated based on 13 days out of 29 days total in the month as a final billing.
ve"4 Sal"
Redevelopment Coordinator
City of Palm Springs
760-323-8260
From: Levingston, Randal [mailto:Randal.Levingston(cbgreyhound.coml
Sent: Thursday, January 14, 2016 8:05 AM
To: Diana Shay
Cc: Erickson, Michael
Subject: Greyhound Palm Springs, CA lease termination
Importance: High
Diana,
Please find attached, a termination letter for our lease in Palm Springs,CA. An original will be forthcoming via certified
mail.
Thanks
Randal Levingston, Regional Real Estate Manager
Greyhound Lines, Inc.
Office: 214-849-8389 1350 N. St. Paul Street, Dallas,TX 75201
Mobile: 214681-8488 randal.levingston@greyhound.com
www.greyhound.com
1
A F fir company
Our vision is
to provide solutions for an increasingly congested world—
keeping people moving and communities prospering.
Commatted to Dedicated Support" Accountabta settwng the
our cus to safety I of each other for performance highest standards
z
AMENDMENT NO. 1 TO
LEASE AGREEMENT
GREYHOUND LINES INC.
This Amendment No. 1 to Lease Agreement ("Amendment') is made and entered as of
July 1, 2013, by and between the City of Palm Springs ("Landlord") and Greyhound Lines Inc.
(formerly Americanos USA, LLC) ("Tenant'), whose address is 600 Vine Street, Suite 1400,
Cincinnati, OH 45202.
RECITALS
A. Landlord and Tenant entered into a Lease Agreement dated November 13, 2008
("the Lease"), for the lease of premises commonly known as the City owned facility located on
Garnet Station Road, the Palm Springs Train Station; and
B. The Lease Agreement was for an initial period of three years, beginning July 1,
2008 and ending June 30, 2011, with the option of two additional one-year terms; and
C. Landlord and Tenant exercised all extension options of the Lease, there are no
remaining options to extend the lease and both parties desire to extend the Lease for an
additional year beyond the June 30, 2013 termination of the contract to allow additional time for
negotiations on a new Lease that will provide for the construction of improvements on the site by
Tenant to benefit bus operations, train passengers and future transportation uses including a new
modular building with ticketing counter, temporary storage lockers, and indoor waiting area.
NOW, THEREFORE, the Landlord and Tenant agree:
AGREEMENT
1. The term of the Lease Agreement shall be extended for a one-year period from
July 1, 2013 to June 30, 2014.
2. The monthly rental rate for the extension period provided in this Amendment No.
1 shall be thirteen hundred eighty three dollars and 75 cents ($1,383.75), the current rate plus a
CPI adjustment calculated in the manner provided in the Lease.
3. All other terms and conditions of the Lease Agreement shall remain in full force
and effect.
[SIGNATURES ON FOLLOWING PAGE]
8665W1 ORIGINAL tJiU
&NDIOR AG6EFMF"4i
IN WITNESS THEREFORE, these parties have executed this Amendment on the day
and year first set forth above.
CITY OF PALM SPRINGS
Date: 11 26 2dt3
David H. Ready, City Manag
"
ATTEST: n,_ i
C2�,.�, 1 L
I es Thompson, City Clerk
APPR AS TO FOR
Do gla t
. olland, City Attorney
GREYHOUND LINES, INC.
Tenant +
By: �� Date:
966560.1
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Agreement") is effective as the he� day of
lee,, k-e, 20�2#he"Effective Date"), by and between Americanos USA, LLC, a Delaware limited
liability company("Assignor"), and Greyhound Lines, Inc., a Delaware corporation ("Assignee").
WHEREAS,Assignor is a party to that certain Lease with The City of Palm Springs(the "Landlord") dated
November 13, 2008, as extended by that certain Extension of Lease dated as of July 1, 2011 (collectively, the
"Lease"), for certain real property located on Garnet Station Road, the Palm Springs Train Station, as more
particularly described therein (the "Premises").
WHEREAS,Assignor desires to assign its interest in the Lease to Assignee and Assignee desires to
assume Assignor's obligations under the Lease;
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,the
receipt of which is hereby acknowledged the parties hereto hereby agree as follows:
1. Assignment of Lease. Assignor does hereby transfer, assign, convey and deliver to Assignee its entire right,
title and interest in the Lease and the Premises.
2. Assumption of Liabilities. Assignee does hereby accept this assignment and, for the benefit of Assignor and
Landlord, expressly assumes and agrees to hereafter perform all of the terms, covenants, conditions and obligations
of Assignor under the Lease, which accrue from and after the Effective Date hereof.
3. Indemnity. Assignor agrees to save, indemnify, defend and hold Assignee harmless from and on account of
any claims, demands, actions, losses, expenses and liabilities (including attorney's fees)of Assignee under the
Lease on account of or arising out of any obligations and liabilities of the Lessee thereunder, arising prior to the date
hereof. Assignee agrees to save, indemnify, defend and hold Assignor harmless from and on account of any
claims, demands, actions, losses, expenses and liabilities(including attorney's fees)of Assignor under the Lease on
account of or arising out of the obligations and liabilities so assumed.
4. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and assigns.
5. Governing Law. This instrument shall be construed and governed in accordance with the internal laws of
the state of California without regard to its conflict of laws principles.
IN WITNESS WHEREOF,the parties hereto have executed this instrument as of the Effective Date.
ASSIGNOR: ASSIGNEE:
Americans USA, LLLLC Gre oundLines, Inc.
By: //�� UC/— By: p
Its: ?Wl 4Lp Its: S( iCIW.41 Gvm c�
�a-
The City of Palm Springs, California consents to this assignment.
The City of Palrr)Springs, C nia i O,u_D .S TO F RNi ATTEST"'
By' ity Clerk
0z1r9 zor3
Its: ty tr�rr:ey
fl,atE _ z /3
APPROVED BY CITY MANAGER
P�jbB�
EXTENSION OF LEASE
i
THIS LEASE EXTENSION is made on July 1,2011,between the City of Palm Springs,a
municipal corporation ("Landlord"), whose address is 3200 East Tahquitz Canyon Way
Pahn Springs, California 92262, and GREYHOUND LINES, INC., (formerly Americanos
USA, LLC) (Tenant") whose address is 600 Vine Street, Suite 1400, Cincinnati, OH
45202,who agree as follows:
1. RECITALS: This LEASE EXTENSION is made with reference to the following facts
fand objectives.
a. LANDLORD and TENANT entered into a Lease Agreement dated November
13, 2008 ("the Lease"), for the lease of the premises commonly known as the City
owned facility located on Garnet Station Road,the Palm Springs Train Station.
b. The Lease will expire on June 30,2011.
I
C. The parties desire to extend the term of the Lease for an additional period of two
years,provided for in paragraph 1.3 of the Lease.
! 2. EXTENSION OF TERM: The term of the Lease shall be extended for a period of
two(2)years beginning July 1,2011 and shall expire on June 30,2013.
3. OPTION TO EXTEND:Tenant shall have no remaining option to extend the Lease.
4. EFFECTIVENESS OF LEASE: Except as set forth in this Extension of Lease, all
e provisions of the Lease,shall remain unchanged and in full force and effect.
e
3
GREYHOUND LINES,INC. City of Palm Springs,
Tenant a California Charter City
i
BY: BY:
i
CITY MANAGER
1b F�qA
APPROVED 8Y CITY MANAGER '
� ft Gry Attomy
ATTEST;
tyClerk ��o�.�orz. OGg�t ':.
ORS �n '
G\Da�mmb uMSming\ttikFi,i¢mpbn\Lem15¢fNg\ianpprdey.InlmeFk.\UHen.pyNook\N9MQWp\AIm Sr'gyl.ae¢ (3�yxy/l3/13/RD
LEASE
By and Between
THE CITY OF PALM SPRINGS
and
Americanos USA, LLC
IRV 921100 vI final �+ p
TABLE OF CONTENTS
Paee No•
1.0 LEASE SUMMARY......................................................................................... .1
LlPremises . • ........................................................................................2
1.2 Lease Commencement Date. .......................................................................2
1.3 Extension Options. N/A .. . ....................................................................2
1.4 Rental.......................................................... • ..............................2
1.5 Security Deposit........................................................... ... •. .......................2
1.6 Use of Premises................................................................... .......2
1.7 Tenant' s Address for Notices......................................................................2
2.0 TERM..............................................................• ........................................3
2.1 Term........................................................ . .........................................3
2.2 Termination By Landlord. .......................... • -• -- ..............................3
2.3 Holding Over. ........................................................................... .....3
3.0 RENTAL.................................................................................................................3
3.1 Annual Rental. .............................................................................................3
32 Real Property Taxes......................................................... ............3
33 Personal Property Taxes. ...................................... -----------------------.........
3
3AUtilities.........................................................................................................4
3.5 Late Payment. ............................................................... • -- .. . .........4
3.6 Interest.............................................................................. .............4
4.0 USE O1'THE PREMISES........................................ .......................4
4.1 Permitted Use.................................................. • .. .. .. ...................4
42 Prohibited Uses............................. .. .. .. .. .. ..........................4
4.3 Compliance with Laws. ...................................................................4
4.4 Sims.........................................................................................I..............-----5
4.5 Hours of Business ....................................................................................5
4.6 Rules and Regulations..................................................................................5
5.0 ALTERATIONS AND REPAIRS.................................................................... 6
5.1 Alterations and Fixtures...................................................................... . .6
IRv A21100 vlfinal i
5.2 Maintenance and Repair. . .................................................................6
5.3 Free from Liens.... .......................................................6
6.0 INSURANCE AND INDEMNIFICATION.........................................................7
6.1 Insurance Provided by Landlord................Error! Bookmark not defined.
6.2 Insurance Provided by Tenant.....................................................................7
6.3 Indemnification of Landlord .....................................................9
7.0 ABANDONMENT AND SURRENDER............................................................10
7.1 Abandonment.................................... .. ... ................................10
7.2 Surrender of Lease..................... .. .. .. ...........................................10
8.0 DAMAGE AND DESTRUCTION OF PREMISES. ........................................10
9.0 ASSIGNMENT AND SUBLETTING................................................................10
10.0 DEFAULT AND REMEDIES ............................................................. 11
10.1 Default by Tenant. .....................................................................................11
10.2 No Waiver......................... . . ..............................................................13
10.3 Landlord's Default. .. . . . . ...........................................................13
11.0 CONDEMNATION. .......................... . .. .. ................................................13
12.0 MISCELLANEOUS • . ............................................................................14
12.1 Entry and inspection. • • .................................................................14
12.2 Estoppel Certificate........ .......................................14
12.3 Jurisdiction and Venue................................................ .................14
12.4 Partial Invalidity......................................................... .................14
12.5 Successors in Interest.................................................................................14
12.6 No Oral A reements........... . ... ...............................................14
12.7 Authority.............. .....................................................................15
12.8 Relationship of Parties......................................................................... ..15
12.9 Nondiscrimination.......................................................................... ....15
12.10 Notices................................................................................ • .. . .....15
12.11 Waiver......................................................... •................15
12.12 Exhibits and Addenda.......... ...........................................16
IRV#21100 v I final ii
EXHIBIT A- LEGAL DESCRIPTION OF THE PREMISES
EXHIBIT B -AERIAL VIEW OF PREMISES
EXHIBIT C - ESTOPPEL CERTIFICATE
EXHIBIT D - RULES AND REGULATIONS
IRV 0}11100 v l final 111
LEASE.
THIS LEASE ("lease") is made and entered into 2 day of OQ_Y_ , 2008, by
and between the CITY OF PALM SPRINGS, a municipal corporation (referred to variously as
"Landlord" or "City"), and Americans USA, LLC (dba Cmcero) a Delaware Limited Liability
Company ("Tenant").
RECITALS
A. WHEREAS Greyhound Lines, Inc. is the nation's largest provider of intercity bus
transportation, serving more than 2,600 destinations with 18,000 daily departures across
the country; and
B. WHEREAS Greyhound Lines, Inc. serves a diverse customer base, offering passengers
everyday low walk-up fares, and is uniquely positioned to serve a broad and growing
market; and
C. WI-TEREAS Americans USA, LLC is a wholly-owned subsidiary of Greyhound Lines,
Inc.,whereby Crucero operates as a regional carrier for Greyhound.
D. WHEREAS Greyhound and Americans are interested in relocating the prior Greyhound
Palm Springs Bus Depot from 311 N. Indian Canyon Drive in downtown Palm Springs to
a City-owned facility located on Garnet Station Road, the Palm Springs Train Station.
E. WHEREAS Americans operates a regional and intercity bus service that provides
transportation from Palm Springs and cooperates with its parent, Greyhound Lines, Inc.
on providing nationwide intercity bus service.
F. WHEREAS the City owns the Train Station located on Garnet Station Road in Palm
Springs, California ("Facility"). The Facility is used by Amtrak to load and unload
intercity rail passengers.
G. WHEREAS Amtrak does not use the Facility full time and Americans desires to use the
Station to provide a location for loading and unloading bus passengers. .
H. WHEREAS the proposed use of the Facility by User will benefit the City by, among
other things, providing intercity bus transportation service to and from the City of Pahn
Springs.
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.
IRV 421100 v I final _1_
1.1 Premises. The "Premises" shall refer to that certain real property located in
the County of Riverside, State of California, as described in the legal description, attached as
Exhibit "A" and depicted on the Aerial View Plan attached as Exhibit `B" hereof. The Premises
shall be nonexclusive and also used by Amtrak.
12 Lease Commencement Date. The Lease shall commence July 1, 2008. Lease
Term: Three(3) years. Lease Termination Date: June 30, 2011.
1.3 Extension Options. One(1) option for a term of two (2) years.
1.4Rental. Rental shall be $1,300.00 per month, with Owner to pay all
operational, utility and maintenance cost necessary to operate the Premises in accordance with
the provisions of the Lease. Upon each annual anniversary date of the Commencement Date,
monthly rental shall be adjusted in proportion to changes in the Consumer Price Index (CPI).
Such adjustment shall not be applicable to additional rent described in Sections 32, 3.3, and 3.4
herein. In addition, should cost for Security Contractor increase as a result of the City entering
into a new contract for services, when the existing security contract expires on January 31, 2009,
expanded bus service schedule or increased need for security supervision due to incidents related
to bus services, rental amount shall be increased accordingly.
1.5 Security Deposit. N/A.
1.6 Use of Premises. Premises shall be used for operation of Regional Intercity
Bus Service and Amtrak Train Station and addition of payphone and directional signage for bus
services. Tenant shall make good faith efforts to reasonably cooperate with Amtrak in using the
Premises.
1.7 Tenant' s Address for Notices.
Americanos USA, LLC
350 North Saint Paul St_ 10`I' Floor
MS 2605
Dallas, TX 75201
Telephone: (214) 849-8616
With a copy to:
Americanos Legal Counsel
IRV#"!]100 vI final -2-
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.
i 2.2 Termination By Landlord. Landlord shall have the right to terminate this
Lease effective on any anniverW of the Commencement Date, with or without cause, by
providing Tenant with at least-si* ("days'-advance written notice. If landlord terminates this
Lease pursuant to this Section, Landlord shall pay Tenant the unamortized portion of the
Improvement Costs that are amortized pursuant to Section 5,1. If Landlord terminates this Lease
as provided in this Section, Tenant hereby waives any right to receive any other compensation
/ from Landlord, including, but not limited to, the value of Tenant's leasehold interest, loss of
goodwill and relocation benefits, inverse condemnation or the taking of property and Landlord
shall have no obligation to pay Tenant therefor.
2.3 Holding Over. Any holding over after the expiration of the tern of this Lease,
with the consent of Landlord, express or implied, shall be construed to be a tenancy from month
to month, cancelable upon thirty (30) days written notice, and at a rental equal to one hundred
fifty percent (150%) of the last applicable Monthly Rental and upon terms and conditions as
existed during the last year of the term hereof.
3.0 RENTAL,-
3-1 Monthly Rental. Tenant shall pay to landlord, during the term of this Lease
from and after the Commencement Date as monthly rental ("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
month of the term of this agreement- All rental to be paid by Tenant to Landlord 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 12-10 hereof.
3.2 Real Property Taxes. In addition to all rentals herein reserved, Tenant shall
pay, at the election of landlord, either directly to the taxing authority or to Landlord, its
proportionate share of 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
Landlord receives the tax bill, ten (10) days after receipt of a copy of the tax bill from Landlord,
whichever is later. Even though the term of this Lease has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's share of such taxes and assessments,
Tenant shall immediately pay to Landlord the prorated amount of any additional sum owed.
3.3 Personal Pro ert Taxes- During the term hereof Tenant shall pay prior to
delinquency all taxes assessed against and levied upon fixtures, furnishings, equipment and all
other personal property as of Tenant contained in the 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 Landlord-
IRV 921100 vl final _3_
3A Utilities. Tenant's payment of monthly rental shall include its pro rata share
of all utilities to the Premises as part of the rental payment. At the time of execution of this
Agreement, electrical and water service are extended to the Premises at the City's cost and are
paid for by the City.
3.5 Late Payment. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rental or other sums due hereunder will cause Landlord 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 when within five (5) business days of its due
date shall be subject to a five percent (5%) late charge. Landlord and Tenant agree that this late
charge represents a reasonable estimate of such costs and expenses and is fair compensation to
Landlord for its loss suffered by such late payment by Tenant.
3.6Interest. 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 Tate 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 Landlord hereby leases to Tenant and Tenant hires from
Landlord the non-exclusive use of the Premises, with improvements as defined herein, for the
purpose of conducting thereon only the use specified in Section 1.6 of this Lease.
4.2 Prohibited Uses. Tenant shall not sell or permit to be kept, used, displayed or
sold in or about the non-exclusive Premises (a) pornographic or sexually explicit books,
magazines, literature, films or other printed material, sexual paraphernalia, or other material
which would be considered lewd, obscene or licentious, (b) any article which may be prohibited
by standard forms of fire insurance policies, or (e) any alcoholic beverages unless expressly
permitted by Section 1.6 hereof
4.3 Compliance with Laws. Tenant shall, at his 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 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's violation of law shall constitute an incurable default under
this Lease. The judgment of any court of competent jurisdiction, or the admission of Tenant in
any action or proceeding against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any such order or statute in said use, shall be conclusive of that fact as between the
Landlord and Tenant.
Tenant shall not engage in any activity on or about the Premises that violates any
Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all investigatory
❑iV 921100 vl final
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 or about the 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. 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 et seq. Tenant shall provide prompt written notice to Landlord of the existence of
Hazardous Substances on the premises and all notices of violation of the Environmental Laws
received by Tenant.
4.4 Signs_ 'Tenant shall have the right to place a monument sign at the entrance to
the Premises in accordance with the City's Zoning Code pertaining to signs, and shall not place
or permit to be placed any sign that is not in compliance with the sign ordinance of the Landlord
upon the exterior or in the windows of the Premises. Any sign not constructed in accordance
therewith shall be immediately removed by Tenant and, if said sign is not removed by Tenant
within ten (10) days of written notice from Landlord to Tenant, then Landlord may remove and
destroy said sign without Tenants approval.
4.5 Hours of Business. Subject to the provisions of Section 8.0 hereof, Tenant
shall continuously during the entire term hereof conduct and carry on Tenants business in the
Premises and shall keep the Premises open for business and cause Tenant's business to be
conducted therein during the usual business hours of each and every business day. Tenant's
service pattern is currently operating between 10:00 a.m. and 6:00 p.m. However, scheduling
patterns may change and in that event, Tenant shall report those changes to the City in writing.
This provision shall not apply if the Premises should be closed and the business of Tenant
temporarily discontinued therein on account of strikes, lockouts, or similar causes beyond the
reasonable control of Tenant including weather, traffic delays,border delays, equipment failures.
4.6 Rules and Regulations. Tenant shall faithfully observe and comply with the
rules and regulations that Landlord shall from time to time promulgate and/or modify. The rules
and regulations, if any, are attached hereto as Exhibit "D" ("Rules and Regulations"). Any
IRV#21100 v]final _�_
amendment or modification of the Rules and Regulations shall be binding upon the Tenant upon
delivery of a copy of such amendment or modification to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of any said rules and regulations by any other
tenants or occupants. The Rules and Regulations shall apply and be enforced as to all tenants in
the Premises on a uniform basis.
5.0 ALTERATIONS AND REPAIRS.
5.1 Alterations and Fixtures. Any expansion, amendment, or alteration of the
Premises 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 Landlord.
Landlord may require that any such alterations be removed prior to the expiration of the term
hereof. Any removal of alterations or furniture and trade fixtures shall be at Tenant's expense
and accomplished in a good and workmanlike manner. Any damage occasioned by such
removal shall be repaired at Tenants 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 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. Upon completion of construction of the improvements,
Tenant shall submit to Landlord evidence satisfactory to Landlord of the cost of said alterations
("Improvement Costs"). The Improvement Costs shall be amortized over the remaining term of
this Lease on a straight line basis for the purposes specified in Section 2.2.
52 Maintenance and Repair. Tenant shall, at all times during the term hereof, and
at Tenants sole cost and 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) including without limitation, the maintenance and repair of any doors,
window casements, glazing, heating and air conditioning system, plumbing, pipes, electrical
wiring and conduits. Tenant shall also at its sole cost and expense be responsible for any
alterations or improvements to the Premises necessitated as a result of the requirement of any
municipal, state or federal authority. Tenant hereby waives all right to make repairs at the
expense of Landlord, and Tenant hereby waives all rights provided for by the Civil Code of the
State of California to make said repairs. By entering into the Premises, Tenant shall be deemed
to have accepted the 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
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.
5.3 Free from Liens. During the period of any construction undertaken on the
Premises and thereafter Tenant shall keep the 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. Upon completion of construction of the improvements Tenant shall assure
that lien releases are obtained for all mechanics liens.
IRV#21100 v1 final _6_
5.4 Maintenance and Repair of Common Area. (a) Tenant shall pay the Landlord
in the manner provided in subdivision (b) below Tenant's pro rata share of the actual costs of
maintaining and operating the Common Area during the lease term. Tenant's maintenance
expenses shall not include any real property taxes, assessments, capital costs, depreciation,
interest, amortization, compensation of executives, overhead, and profit, all as determined in
accordance with generally accepted accounting principles. Tenant's maintenance expenses shall
include all costs incurred due to Tenant's use of the Common Areas that are beyond Tenant's
normal scope of use, such as by way of example clean up costs associated with Tenant's
construction debris and extraordinarily heavy use of the Common Areas as reasonably
detennined by Tenant and Landlord in good faith.
(b) Tenant's pro rata share of the costs and expenses shall be that portion of the whole which the
floor space of the leased Premises bears to the total ground floor space from time to time
occupied by tenants in the entire Premises. The annual charge to Tenant shall be paid in monthly
installments on the first day of each calendar month in advance in an amount estimated by the
Landlord. Within 90 days after the end of each calendar year, the Landlord shall furnish the
Tenant a statement in reasonable detail of the actual common area costs and expenses paid or
incurred by the Landlord or its designees during such period, prepared in accordance with sound
accounting practices by the Landlord's or the designee's accountant. Thereupon there shall be an
adjustment between the Landlord and Tenant, with payment to or repayment by the Landlord, as
the case may require, so that the Landlord shall receive the entire amount of Tenant's pro rata
share of such costs and expenses for such period_ in no event, however, shall the Tenant's pro
rata share and payments exceed $5,000.00 (five thousand dollars)annually or shall Tenant's pro
rata share include tenant improvement costs incurred by Landlord or other third party for the
benefit of other tenants.
(c) Any disagreement between Landlord and Tenant with respect to the interpretation or
application of this section shall be determined by arbitration under the governing rules of the
American Arbitration Association-
6-0 INSURANCE AND INDEMNIFICATION.
6.1 Insurance Provided by Landlord. Landlord shall maintain fire and extended
coverage insurance throughout the tenn of this Lease in an alnount equal to one hundred percent
(100%) of the replacement value of the Tenant's building on the Premises, together with such
other insurance, coverages and endorsements as may be required by Landlord's lender, or as
Landlord may detennine in its sole discretion. Tenant hereby waives any right of recovery £tom
Landlord, its officers and employees, and Landlord hereby waives any right of loss or damage
(including consequential loss) resulting from any of the perils insured against as a result of said
insurance.
6.2 Insurance Provided by Tenant.
(a) Tenant to Provide Personal Property Insurance. Tenant, at its expense,
shall maintain fire and extended coverage insurance written on a per occurrence basis on
its trade fixtures, equipment, personal property and inventory within the Premises from
loss or damage to the extent of their full replacement value. (waived Ref. Exhibit"E")
IRV#2I 100 vl final _�_
(b) Tenant to Provide Liability Insurance. During the entire term of this
Lease, the Tenant shall, at the Tenants sole cost and expense, but for the mutual benefit
of Landlord and Tenant, maintain comprehensive general liability insurance insuring
against claims for bodily injury, deatb or property damage occurring in, upon or about the
Premises and on any sidewalks directly adjacent to the Premises written on a per
occurrence basis in an amount not less than either (i) a combined single limit of ONE
MILLION DOLLARS ($1,000,000.00) for bodily injury, death, and property damage or
(ii) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and
$500,000.00 products and completed operations and property damage limits of
$100,000.00 per occurrence and $250,000.00 in the aggregate; provided, however, if
Landlord so elects Landlord may provide such insurance and, in such event, Tenant
agrees to pay its pro rats, share of the cost of said insurance on the same basis as provided
in Section 6.1 above.
(c) Tenant to Provide Worker's Compensation Insurance. If applicable,
Tenant shall, at the Tenants sole cost and expense, maintain a policy of worker's
compensation insurance in an amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Tenant and the Landlord against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or any persons retained by
the Tenant in the course of conducting Tenant's business in the Premises.
(d) General Provisions Applicable to Tenant's Insurance. All of the
policies of insurance required to be procured by Tenant pursuant to this Section 6.2 shall
be primary insurance and shall name the Landlord, its officers, employees and agents as
additional insureds. The insurers shall waive all rights of contribution they may have
against the Landlord, its officers, employees and agents and their respective insurers. All
of said policies of insurance shall provide that said insurance may not be amended or
cancelled without providing 30 days prior written notice by registered mail to the
Landlord. Prior to the Commencement Date or such earlier date as Tenant takes
possession of the Premises for any purpose; and at least 30 days prior to the expiration of
any insurance policy, Tenant shall provide Landlord with certificates of insurance or
appropriate insurance binders evidencing the above insurance coverages written by
insurance companies acceptable to Landlord, licensed to do business in the state where
the Premises are located and rated A:VII or better by Bests Insurance Guide. In the
event the Risk Manager of Landlord ("Risk Manager") determines that (i) the Tenant's
activities in the Premises creates an increased or decreased risk of loss to the Landlord,
(ii) greater insurance coverage is required due to the passage of time, or (iii) changes in
the industry require different coverages be obtained, Tenant agrees that the minimum
limits of any insurance policy required to be obtained by Tenant may be changed
accordingly upon receipt of written notice from the Risk Manager, provided that Tenant
shall have the right to appeal a determination of increased coverage by the Risk Manager
to the City Council of Landlord within ten (10) days of receipt of notice from the Risk
Manager. Landlord and Tenant hereby waive any rights each may have against the other
on account of any loss or damage occasioned by property damage to the Premises, its
contents, or Tenants trade fixtures, equipment personal property or inventory arising from
IRV#21100 vI final _8_
any risk generally covered by insurance against the perils of fire, extended coverage,
vandalism,malicious mischief, theft, sprinkler damage, and earthquake sprinkler leakage.
Each of the parties, on behalf of their respective insurance companies insuring such
property of either Landlord or Tenant against such loss, waive any right of subrogation
that it may have against the other. The foregoing waivers of subrogation shall be
operative only so long as available in California and provided further that no policy is
invalidated thereby.
6.3 Indemnification of Landlord. Tenant,as a material part of the consideration to
be rendered to Landlord under this Lease, hereby waives all claims against Landlord for damage
to equipment or other personal property, trade fixtures, leasehold improvements, goods, wares,
inventory and merchandise, in, upon or about the Premises and for injuries to persons in or about
the Premises, from any cause arising at any time. Tenant agrees to indemnify the Landlord, its
officers, agents and employees against, and will hold and save them and each of them harmless
from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities, (herein"claims or liabilities") that may be asserted or
claimed by any person, firm or entity arising out of or in connection with the negligent
performance of the work, operations or activities of Tenant, its agents, employees,
subcontractors, or invitees, provided for herein, or arising from the use of the Premises or the
parking and Common Area by Tenant or its employees and customers, or arising from the failure
of Tenant to keep the Premises in good condition and repair, as herein provided, or arising from
the negligent acts or omissions of Tenant hereunder, or arising from Tenant's negligent
performance of or failure to perform any term, provision covenant or condition of this Lease,
whether or not there is concurrent passive or active negligence on the part of the Landlord, its
officers, agents or employees but excluding such claims or liabilities arising from the sole
negligence or willful misconduct of the Landlord, its officers, agents or employees, who are
directly responsible to the Landlord, and in connection therewith:
(a) Tenant will defend any action or actions filed in connection with any
of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Tenant will promptly pay any judgment rendered against the Landlord,
its officers, agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such work, operations
or activities of Tenant hereunder, and Tenant agrees to save and hold the Landlord, its
officers, agents, and employees harmless therefrom;
(c) In the event the Landlord, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Tenant for such damages or
other claims arising out of or in connection with the negligent performance of or failure
to perform the work, operation or activities of Tenant hereunder, Tenant agrees to pay to
the Landlord, its officers, agents or employees, any and all costs and expenses incurred
by the Landlord, its officers, agents or employees in such action or proceeding, including
but not limited to,legal costs and attorneys' fees.
IRV 821100 vl final _9_
7.0 ABANDONMENT AND SURRENDER,
7.1 Abandonment. Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease; and if Tenant shall abandon, vacate or surrender the Premises or be
dispossessed by process of law, or otherwise, any personal property belonging to Tenant and left
on the Premises shall be deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Landlord.
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 Landlord,
terminate all or any existing subleases or subtenancies, or may, at the option of Landlord, operate
as an assignment to it of any or all of such subleases or subtenancies.
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 Tenant's act, use or occupation, which declaration
requires repairs to the Premises, Landlord shall forthwith make said repairs provided Tenant
gives to Landlord 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
Tenant 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 Tenant 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), Landlord may within thirty (30) days following the
date such damage occurs tenninate this Lease by written notice to Tenant. If Landlord,however,
elects to make said repairs, and provided Landlord 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, Landlord
may within thirty (30) days following the date of such destruction terminate this Lease upon
written notice to Tenant. If Landlord does not elect to terminate because of said uninsured
casualty, Landlord 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 Landlord elects to terminate this Lease, all rentals shall be prorated
between Landlord and Tenant 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 Landlord is obligated to repair or may elect
to repair under the terms of this Section, Tenant waives any statutory right it may have to cancel
this Lease as a result of such destruction.
9.0 ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or sublet
the Premises, or any interest therein, without the prior written consent of Landlord, which
IRV#21100 v1 final _10-
consent shall not be unreasonably withhold or delayed. For purposes of this Lease, an
assignment shall be deemed to include the transfer to any person or group of persons acting in
concert of more than twenty five percent (25%) of the present ownership and/or control of
Tenant, taking all transfers into account on a cumulative basis. Landlord may withhold its
consent to an assignment or sublease to a proposed assignee or sublessee, and Tenant agrees that
Landlord shall not be unreasonable for doing so, unless all the following criteria are met (a) The
proposed assignee's or sublessee's general financial condition, including liquidity and net worth,
verified by audited financial statements prepared by a Certified Public Accountant in conformity
with Generally Accepted Accounting Principles is equal to or greater than that of Tenant; (b) the
proposed assignee or sublessee has a demonstrated merchandising capability equal to or greater
than that of Tenant as to the use for which the Premises are leased; (c) the proposed assignee or
sublessee is morally and financially responsible. Any such assignment shall be subject to all of
the terms and conditions of this Lease and the proposed assignee shall assume the obligations of
Tenant under this Lease in writing in form satisfactory to Landlord. The proposed assignee shall
simultaneously provide to Landlord an estoppel certificate in the farm described in Section 12.2
hereafter. Consent by Landlord to one assignment, subletting, occupation or use by another
person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation
or use by another person. Any assignment or subletting without the prior written consent of
Landlord shall be void, shall constitute a material breach of this Lease, and shall, at the option of
Landlord, terminate this Lease. Neither this Lease nor any interest therein shall be assignable as
to the interest of Tenant by operation of law.
Landlord shall be under no obligation to consider a request for Landlord's consent
to an assignment until Tenant shall have submitted in writing to Landlord a request for
Landlord's consent to such assignment together with audited financial statements of Tenant and
the proposed assignee, a history of the proposed assignee's business experience and such other
information as required by Landlord to verify that the criteria for assignment as set forth herein
are met. If Landlord approves such assignment, Tenant shall pay to Landlord one-half(112) of
any consideration received by Tenant for such assignment. In addition, if Landlord determines
that the Monthly Rent payable to Landlord under this Lease is less than the fair market rental
value, as determined by Landlord, Landlord shall have the right to condition its approval to an
assignment or subletting on the increase of Monthly(lent to the fair market rental value.
10.0 DEFAULT AND REMEDIES.
10.1 Default by Tenant. In addition to the defaults described in Section 9.0
hereinabove, the occurrence of any one or more of the following events shall constitute a default
and breach of this Lease by Tenant: (a) the failure to pay any rental or other payment required
hereunder to or on behalf of Landlord more than three (3)business days after written notice from
Landlord to Tenant that Tenant has failed to pay rent when due; (b) the failure to perform any of
Tenants 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
Landlord to Tenant 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
Tenant; (d) the making by Tenant of a general assignment for the benefit of creditors; (e) the
filing by Tenant of a voluntary petition in bankruptcy or the adjudication of Tenant as a
bankrupt; (f) the appointment of a receiver to take possession of all or substantially all the assets
IRV#21100 vI final -11-
of Tenant located at the Premises or of Tenants leasehold interest in the Premises; (g) the filing
by any creditor of Tenant 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 Tenant or Tenant's leasehold where such an attachment,
execution or seizure is not discharged within sixty (60) days. Any repetitive failure by Tenant 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 Tenant to perform its obligations hereunder.
In the event of any such default or breach by Tenant, Landlord may at any time
thereafter,without further notice or demand,rectify or cure such default, and any sums expended
by Landlord for such purposes shall be paid by Tenant to Landlord upon demand and as
additional rental hereunder. In the event of any such default or breach by Tenant, Landlord 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) Landlord shall have the right at any time thereafter to elect to terminate the Lease
and Tenants right to possession thereunder. Upon such termination, Landlord shall have the
right to recover from Tenant:
(i) The worth at the time of award of the unpaid rental which had been
earned at the time of termination;
(ii) The worth at the time of award of the amount by which the unpaid
rental which would have been earned after termination until the time of award exceeds
the amount of such rental loss that the Tenant proves could have been reasonably
avoided;
(iii) The worth at the time of award of the amount by which the unpaid
rental for the balance of the term after the time of award exceeds the amount of such
rental loss that the Tenant proves could be reasonably avoided; and
(iv) Any other amount necessary to compensate the Landlord for all the
detriment proximately caused by Tenants failure to perform its obligations under the
lease or which in the ordinary course of things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in subparagraphs (i)
and (ii) above shall be computed by allowing interest at three percent (3%) over the prime rate
then being charged by Bank of America, N.A. but in no event greater than the maximum rate
permitted by law. The worth at the time of award of the amount referred to in subparagraph (iii)
above shall be computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (M), but in no event greater than
ten percent(10%).
IRV#21100 vI final -12-
As used herein "rental" shall include the Monthly Rental, percentage rental equal
to the average percentage rental paid or payable by Tenant for the last twelve (12) months or
such lesser period as Tenant has been open for business, other sums payable hereunder which are
designated "rental" or "additional rental" and any other sums payable hereunder on a regular
basis such as reimbursement for real estate taxes.
Such efforts as Landlord may make to mitigate the damages caused by Tenants
breach of this Lease shall not constitute a waiver of Landlord's right to recover damages against
Tenant hereunder, nor shall anything herein contained affect Landlord's right to indemnification
against Tenant for any liability arising prior to the termination of this Lease for personal injuries
or property damage, and Tenant hereby agrees to indemnify and hold Landlord harmless from
any such injuries and damages, including all attorney's fees and costs incurred by Landlord in
defending any action brought against Landlord for any recovery thereof, and in enforcing the
terms and provisions of this indemnification against Tenant.
Notwithstanding any of the foregoing, the breach of this Lease by Tenant, or an
abandonment of the Premises by Tenant, shall not constitute a termination of this Lease, or of
Tenant's right of possession hereunder, unless and until Landlord elects to do so, and until such
time Landlord shall have the right to enforce all of its rights and remedies under this Lease,
including the right to recover rent, and all other payments to be made by Tenant hereunder, as
they become due. Failure of Landlord to terminate this Lease shall not prevent Landlord from
later terminating this Lease or constitute a waiver of Landlord's right to do so.
10.2 No Waiver. Acceptance of rental hereunder shall not be deemed a waiver
of any default or a waiver of any of Landlord's remedies.
10.3 Landlord's Default. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no event later than
thirty(30) days after written notice by Tenant to Landlord 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 Tenant in writing, specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance then Landlord shall not he deemed in default if
Landlord commences performance within a (30) day period and thereafter diligently prosecutes
the same to completion. In no event shall Tenant have the right to terminate this Lease as a
result of Landlord's default and Tenant's remedies shall be limited to damages and/or 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, Landlord 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, Tenant may, upon written notice given within thirty (30) days after such taking or
transfer in lieu thereof, terminate this Lease. Tenant shall not be entitled to share in any portion
of the award and Tenant hereby expressly waives any right or claim to any part thereof. Tenant
shall, however, have the right to claim and recover, only from the condemning authority (but not
from Landlord), any amounts necessary to reimburse Tenant for the cost of removing stock and
IRV#21100vI final -13-
fixtures. If this Lease is not terminated as above provided, Landlord shall use a portion of the
condemnation award to restore the Premises.
12.0 NUSCELLANEOCIS.
12.1 Entry and inspection. Tenant shall permit Landlord 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 nonliability for alterations, additions or repairs, or for the purpose of
placing upon the property in which the Premises are located any usual or ordinary "For Sale"
signs or any signs for public safety as determined by Landlord. Landlord shall be permitted to
do any of the above without any rebate of rent and without any liability to Tenant for any loss of
occupation or quiet enjoyment of the Premises thereby occasioned. Tenant shall permit
Landlord, at any time within six (6) months prior to the expiration of this Lease, to place upon
the Premises any usual or ordinary "For Lease" signs, and during such sic (6) month period
Landlord or his agents may, during normal business hours, enter upon said Premises and exhibit
same to prospective tenants.
12.2 Estoppel Certificate. If, as a result of a proposed sale, assignment, or
hypothecation of the Premises or the land thereunder by Landlord, or at any other time, an
estoppel certificate shall be requested of Tenant, Tenant 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 Landlord. Tenant 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.
12.3 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 tenants 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 Tenant agrees to submit to the personal jurisdiction of such court in the event
of such litigation.
12.4 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.
12.5 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.
12.6 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
IRV Y.21100 vl final -14-
the parties, oral or written, and (iii) merges all preliminary negotiations and agreements of
whatsoever kind or nature herein. Tenant acknowledges that no representations or warranties of
any kind or nature not specifically set forth herein have been made by Landlord or its agents or
representatives.
12.7 Authori . In the event that Tenant 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. Tenant represents and warrants to Landlord that the entering into this Lease does
not violate any provisions of any other agreement to which Tenant is bound!
12.8 Relationship of Parties. The relationship of the parties hereto is that of
Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any
way or for any purpose become a partner of Tenant in the conduct of Tenant's business or
otherwise, or a joint venturer with Tenant, 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.
12.9 Nondiscrimination. Tenant 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, trans£ezxing,
use, occupancy,tenure or enjoyment of the Premises herein leased,nor shall the Tenant 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 tenants, lessees, sublessees, subtenants or vendees in the Premises.
12.10 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 Landlord, to City of Palm Springs, P.O. Box 2743, Palm Springs, California,
92263, Attn: City Manager, and if to Tenant, as specified in Section 1.7. Either parry may
change the address set fortir 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.
12.11 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party shall impair such right or remedy or be construed as a waiver. A parry'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.
IRV N21100 v1 final -15-
12.12 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 an Addenda and the terms and provisions of this Lease, the terms and
provisions of the Addenda shall prevail.
12.13 No Construction. Landlord represents and warrants to Tenant that
Landlord has no knowledge of pending or planned construction projects that will affect in any
way public right of ways, roads and/or sidewalks providing access to the Premises that could
unreasonably or materially interfere with Tenant's intended use of the Premises. The parties
acknowledge that such representation and warranty by Landlord is a material inducement to
Tenant to enter into this Lease and a breach of this section is grounds for Tenant, at its option, to
terminate this Lease without penalty.
[SIGNATURES ON NEXT PAGE]
IRV#21100 vt final -16-
IN WITNESS WHEREOF, the parties have duly executed this Lease together with the
herein referred to Exhibits which are attached hereto, on the day and year first above written in
Palm Springs, California-
ATTEST: CITY OF PALM SPRINGS, a
California Charter City
$Y 13y:
ity Clerk 1 1 /rI f City Manager
REVIEWED AND APPROVED
APPROVED BY CITY COUNCIL
WOODRU�FFTSPRADLIN&-SMART
/ I
BY: q
Douglas C. Holland
City Attorney
"TENANT"
mertG4was k5A.
By:
Its:
By:
Its:
IRV#21100 v1 final -17-
IN WITNESS WHEREOF, the parties have duly executed this Lease together with the
herein referred to Exhibits which are attached hereto, on the day and year first above written in
Palm Springs,California. ,
ATTEST: CI 1 LM SPRINGS a
C i 1a Charter CityY
By: el
City Clerk
/ M Ci Manager
/0
REVIEWED AND`:kPPROyED �
WOODRUFF,iPRADLIN&� T "
By: /f
UDuglas C. a
Pity Atto ey /f
I �f "TENANT"
1 � ✓
By:
Its:
By:
Its:
Approved as to form
Roaool
Attorney for Tonant
Rodolfo Mats, $,C.
1112 Montana AVE.
E1 Paso, Texas 79902
915.613-0780
rmataermatapc.com
1RV X21100 v1 final -17-
EXHIBIT "A"
LEGAL DESCRIPTION Of THE PREMISES
Parcel 1.
That portion of the Southeast quarter of the Northeast quarter of Section 22, Township 3
South, Range 4 East, San Bernardino Meridian, as shown by United States Government
survey, which lies southwesterly of the Southwesterly line of the right of way of Southern
Pacific Railroad Company, as established by Act of Congress of March 3, 1875.
Except any portion thereof included within the East 75 feet of the Southeast quarter of the
Northeast quarter of said Section as conveyed to the County of Riverside by Deed
recorded July 13, 1950 in Book 1188, Page 493, Official Records.
Parcel 2.
All that portion of the Southeast quarter of the northeast quarter of section 22, Township
3 South, Range 4 East, San Bernardino Base and Meridian, in the County of Riverside,
State of California, as shown by United States Goverrnnent Survey, particularly described
as follows:
Beginning at the point of intersection of the South line of the Southeast quarter of the
Northeast quarter of said Section 22 with the Southwesterly line of the right of way of the
Southern Pacific Railroad Company, as established by Act of Congress March 3, 1875;
Thence Westerly on the South line of said Southeast quarter of Northeast quarter,
1,071.00 feet to a point 166.00 feet Easterly from the Southwest corner of said Southeast
quarter of Northeast quarter;
Thence Northeasterly 747.40 feet to a point in the Southwesterly line of said railroad
right of way, said point being 500.00 feet Northwesterly on said railroad right of way
from the point of beginning;
Thence Southeasterly on the Southwesterly line of said railroad right of way, 500.00 feet
to the point of beginning;
Except any portion thereof included within the East 75.00 feet of the Southeast quarter of
the Northeast quarter of said Section, as described by deed to the County of Riverside,
Recorded July 13, 1950 in Book 1100 Page 493 of Official Records of Riverside County,
California.
Page 1 of 1
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Copyright Q 2006 All Rights Reserved. The information contained herein ie the proprietary property of the
contributor supplied under license and may not be approved except as licensed by Digital Map Products.
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EXHIBIT "C"
ESTOPPEL.CERTIFICATE
Tenant: AMERICANOS USA
Landlord: CITY OF PALM SPRINGS, a
California Charter City
Date of Lease:
Premises:
To:
The undersigned hereby terrifies as follows:
I. The undersigned is the tenant ("Tenant") under the above-referenced Lease
("Lease") covering the above-referenced premises ("Premises").
2. The Lease constitutes the entire agreement between landlord under the Lease
("Landlord") and Tenant with respect to the 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 . Tenant has
accepted possession of the 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 Premises by Landlord have been completed and accepted by Tenant and any tenant
construction allowances have been paid in full.
4. As of this date, to the best of Tenant'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 Tenant or Landlord. To the best of Tenants knowledge,no
claim, controversy, dispute, quarrel or disagreement exists between Tenant and Landlord.
5. Tenant is currently obligated to pay Annual Rent in installments of S
per month, and such monthly installments have been paid not more than one month in advance.
In addition, the Lease requires Tenant to pay percentage rent each month in the amount of
percent L9%) and percentage rent has been paid through 119_
To the best of Tenants knowledge, no other rent has been paid in advance and Tenant has no
claim or defense against Landlord under the Lease and is asserting no offsets or credits against
IRV#21100 Vl final
EXHIBIT"C"
TO LEASE
either the rent or Landlord. Tenant has no claim against Landlord for any security or other
deposits except S which was paid pursuant to the Lease.
6. Tenant has no option or preferential right to lease or occupy additional space
within the Property of which the Premises are a part. Tenant has no option or preferential right
to purchase all of any part of the Premises nor any right or interest with respect to the Premises
other than as Tenant under the Lease. Tenant has no right to renew or extend the term of the
Lease except as set forth in the Lease.
7. Tenant has made no agreements with Landlord 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 Tenant 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 Tenant.
9. All insurance which Tenant is required to maintain under the Lease has been
obtained by Tenant and is in full force and effect and all premiums with respect thereto have
been paid.
Dated this day of 20
By:
Its:
IRV#21100 vlfinal
EXHTBTT"C"
TO LEASE
EXHIBIT "D"
RULES AND REGULATIONS
1. All loading and unloading of passengers and freight shall be done only at the
times, in the areas and through the entrances reasonably designated for such purposes by City.
1. The Tenant is responsible for maintaining the security of passengers, buses and
parked vehicles at the Premises through its own efforts. All stops to load or unload passengers
shall be conducted during hours when a staff member of Tenant is present.
2. All of Tenant's refuse and rubbish shall be removed on a regular basis at User's
sole cost and expense. Tenant shall not burn any trash or garbage of any kind in, about or upon
the Premises. Tenant shall not place any rubbish or other matter outside any building within the
Facility, except in such containers as are authorized from time to time by City.
3. No radio or television or other similar device audible outside the facility shall be
installed without obtaining in each instance the written consent of City. No aerial shall be
erected on the roof, exterior walls or grounds of the Premises without first obtaining in each
instance the written consent of City which consent shall not be unreasonably withheld or
delayed. Any aerial so installed without such written consent shall be subject to removal without
notice at any time.
4. No loudspeakers, televisions, phonographs, radios or other devices shall be used
in a manner so as to be heard or seen outside of the Premises without first obtaining in each
instance written consent of City.
6. No sirens, outside paging or any type of signalization will be permitted, except
approved alarm systems.
7. The outside sidewalks and passenger loading areas immediately adjoining the
Tenant's building shall be kept clean and free from dirt and rubbish by Tenant to the reasonable
satisfaction of City, and Tenant shall not place or pen-nit any obstructions or merchandise in such
areas, except to the extent specifically permitted by the provisions of Tenant's lease.
S. Tenant will not allow animals, except seeing-eye dogs, in, about or upon the
Premises.
9. Tenant shall not use, and shall not allow anyone else to use, the Facility as a
habitation. Such prohibition shall include,without limitation, sleeping, eating or bathing.
10. No vehicle servicing or fueling shall be allowed on the Premises, including the
changing of wheels or tires, pumping fuel, emptying liquid waste tanks, or servicing any engine
or motor.
IRV#21100 v 1 final
EXHIBIT"E"
TO LEASE
EXHIBIT"E"
INSURANCE REQUIREMENTS-SPECIAL PROVISIONS
Requirements for personal property insurance under Section 62 (a) is waived.
IRV g21100 v I final
EXHIBIT"E"
TO LEASE
State of California )
)ss.
County of )
On before me,
Date Namc and Title of Officer
personally appeared
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies),and that by his/her/their signatures(s)on the instrument the person(s),or the entity upon behalf of
which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERXRY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal
Signature of Notary Public
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MSC#17755
Aon Risk Services · · · PO Box 1447 Lincolnshire, IL 60069
MDG2023 00018046 01 .ii 11• I' I •hi•"' Ir• •11 •111• II'"' •1 lh I u 111,111111"11111 Im II•
The City of Palm Springs '3200 East Tahquitz·Canyon Way Palm Springs CA 92263
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A5688