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HomeMy WebLinkAbout2006-07-12 STAFF REPORTS 4A LICENSE AGREEMENT By and Between THE CITY OF PALM SPRINGS and The Well In The Desert THE WELL IN THE DESERT LICENSE AGREEMENT This LICENSE AGREEMENT ("License") is made and entered into day of .July, 2006, by and between the CITY OF PALM SPRINGS, a California charter city (City), and The Well In the Desert, a California non-profit public benefit corporation ('The Well"). RECITALS A. The City and The Well are mutually interested in providing for the nutritional needs for the homeless and needy. B. City is the owner of that certain real property located at 1901 East Baristo Road, Palm Springs, California, including all improvement thereon existing as of the Commencement Date (Site), as legally described in Exhibit "A" attached hereto. C. The City wishes to continue to make the Site available to The Well for an indeterminate period of time as the City completes its study for the development of an alternative location for the provision of nutritional services for the homeless and the needy. The Well wishes to use such Site under the terms of this License to fulfill the ,goal of serving the homeless and needy. AGREEMENT 1.0 LICENSE SUMMARY. Certain fundamental License 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 License. In the event of any conflict between any fundamental License provision and the balance of this License, the latter shall control. References to specific Sections are for convenience only and designate some of the Sections where references to the particular fundamental License provisions may appear. 1.1 Site. The "Site" shall refer to that certain real property located in the County of Riverside, State of California, as more particularly described in Exhibit "A" hereof together with the improvements located thereon. 1.2 License Commencement Date. The License shall commence July 1, 2006 ("Commencement Date") and shall continue until the City provides notice of termination or June 30, 2007, whichever date occurs first. 1.3 Rental. Rental shall be $400.00 monthly with any applicable credit from the fee schedule under the Facility Use Application. 1.4 Security Deposit. $100.00, as transferred under the existing Facility Use Application. -1- 1.5 Use of Site. The Well shall use the Site solely for the purpose of operating a hot meal feeding program for use by the general public, pursuant to The Well's By-Laws on file with the Department of Community and Economic Development Department at Palm Springs City Hall, located at 3200 East Tahquitz Canyon Way, Palm Springs, CA 92262 and attached herein as Exhibit "A". The Well shall not expand or change such use without the express written consent of the City. 1.6 "The Well's" Address for Notices. The Well in the Desert PO Box 5312 Palm Springs, CA 92263-5312 Telephone: 760.219.3522 With a copy to: Mr. Lee Nokleby, Board Member 71 White Sun Way Rancho Mirage, CA 92270-4701 Telephone: 760.674.4432 1.7 "City's" Address for Notices. City of Palm Springs 3200 E Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager -2- 2.0 TERM. 2.1 Term. The term of this License shall commence on the date specified in Section 1.2 ("Commencement Date") and shall continue until the date of termination as provided in Section 2.2 or June 30, 2007, whichever event occurs first. 2.2 Termination By City. City shall have the right to terminate this License, with or without cause, by providing The Well with at least twenty-four (24) hour advance written notice. If City terminates this License as provided in this Section, The Well hereby waives any right to receive any compensation from City, including, but not limited to, the value of The Well's license interest, loss of goodwill and relocation benefits, inverse condemnation, or the taking of property, and City shall have no obligation to pay The Well therefor. 2.3 If The Well fails to surrender to City the Site, upon any termination of this License, the liabilities and obligations of The Well hereunder shall continue in effect until the Site surrendered. Termination shall not release The Well from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. 3.0 RENTAL. 3.1 Monthly Rental. The Well shall pay to City, during the term of this License from and after the Commencement Date as monthly rental ("Rental") for the Site the sum specified in Section 1.4 hereof, which sum shall be paid in advance on the Commencement Date and yearly thereafter. All rental to be paid by The Well to City shall be in lawful money of the United States of America and shall be paid without deduction or offset, prior notice or demand at the address designated in Section 12.10 hereof. 3.2 Real Property Taxes. The City shall pay the annual real estate taxes and assessments levied upon the Site (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. 3.3 Personal Property Taxes. During the term hereof The Well shall pay prior to delinquency all taxes assessed against and levied upon fixtures, furnishings, equipment and all other personal property as of The Well contained in the Site, and when possible The Well shall cause said fixtures, furnishings, equipment and other personal property to be assessed and billed separately from the real property of City. 3.4 Utilities. The City shall pay for all utilities to the Site during the License Term. 3.5 Late Payment. The Well hereby acknowledges that late payment by The Well to City of rental or other sums due hereunder will cause City to incur costs -3- not contemplated by this License, 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 The Well not paid when within five (5) days of its due date shall be subject to a five percent (5%) late charge. City and The Well agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by The Well. 3.6 Interest. Any sum to be paid pursuant to the terms of this License 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 SITE. 4.1 Permitted Use. The City hereby Licenses to The Well the Site with appurtenances as defined herein, for the purpose of conducting thereon only the use specified in Section 1.6 of this License. 'The Well has the Right to Occupy the eastern portion of the Site interior and exterior and have use of the food preparation area for food-warming. Exclusive right to the conference room and a designated secured storage area for feeding and food serving utensils, cleaning products and paper products. When weather permits, the Site's eastern entrance and exterior lawn area shall be solely utilized as ingress and egress for The Well's operations, and other remaining entrances and exits shall be for emergency purpose. The eastern lawn area shall have a permitted use as a picnic area with park furniture (i.e., tables, shade structure, water fountains, etc.). 4.2 Prohibited Uses. The Well shall not sell or permit to be kept, used, displayed or sold in or about the Site (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 (c) any alcoholic beverages unless expressly permitted by Section 1.6 hereof. The Well shall not store any items other than specified in Section 4.1. 4.3 Compliance with Laws. The Well agrees that all operations and activities by or under The Well on the Site shall be conducted in compliance 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 Site, 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. The Wells violation of law shall constitute an incurable default under this License. The judgment of any court of competent jurisdiction, or the admission of The Well in any action or proceeding against The Well, -4- whether City be a party thereto or not, that The Well has violated any such order or statute in said use, shall be conclusive of that fact as between the City and The Well, The Well shall not engage in any activity on or about the Site that violates any Environmental Law, and shall promptly, at The Wells 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 The Well. 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 Site, 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. The Well shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 26249.5 et seq. The Well shall provide prompt written notice to City of the existence of Hazardous Substances on the Site and all notices of violation of the Environmental Laws received by The Well. The Well agrees in using the Site not to perform any acts or carry on any practices that may injure adjoining buildings or property or be a nuisance or menace to other persons or businesses in the area or disturb the quiet enjoyment of any person, nor to conduct or permit to be conducted any public or private nuisance on the Site. 4.4 Signs. The Well shall not place or permit to be placed any sign that is not in compliance with the sign ordinance of the City upon the exterior or in the windows of the Site. Any sign not constructed in accordance therewith shall be immediately removed by The Well and, if said sign is not removed by The Well within ten (10) days of written notice from City to The Well, then City may remove and destroy said sign without The Well's approval. At such time as a use is established on the adjacent parcel, The Well shall allow signage as approved by the City related to the adjacent use. -5- 4.5 Hours of Operations. Subject to the provisions of Section 8.0 hereof, The Well shall maintain the Site open for the public use during hours to be approved in advance by the City Manager (or his/her designee). The Well shall not re- enter the Site during a time not specified by this License, except for extraordinary circumstances to permit quick pick-up or drop-off of supplies or equipment, provided no other user is using the facility at that time. The Well may request changes in the hours and days of operation from time to time in response to the public demand and need for use of the Site. The Well shall submit such requests in writing to the City Manager (or his/her designee), who shall approve or disapprove the request within five (5) working days after receipt. Requests may be submitted by fax. Any request not approved or disapproved within five (5) working days shall be deemed disapproved. 4.6 Rules and Regulations. The Well shall faithfully observe and comply with the rules and regulations that City 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 amendment or modification of the Rules and Regulations shall be binding upon the The Well upon delivery of a copy of such amendment or modification to The Well. City shall not be responsible to The Well 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 and occupants in the Site on a uniform basis. 4.7 Public Access. Except as provided in this Section 4.7, the Site shall be open to the general public during the hours of operation approved by the City Manager in accordance with Section 4.5. Notwithstanding the foregoing, The Well may, with the written approval of the City Manager, exclusively use the Site during non- operating hours for its private purposes such as fundraising or promotions. 5.0 CONSTRUCTION OF NEW FACILITIES, ALTERATIONS AND REPAIRS. 5.1 Maintenance and Repair. The Well shall, at all times during the term hereof, and at The Well's sole cost and expense, routinely keep, maintain and repair the Site, and other improvements within the Site in good and sanitary order, condition, and repair in accordance with the City's Facilities Department standards of maintenance and upkeep (except as hereinafter provided) including without limitation, the maintenance and repair of any wall, doors, window casements, glazing, heating and air conditioning system, plumbing, pipes, electrical wiring and conduits, patios, outdoor structures and outdoor lighting facilities at the Site. The Well shall also at its sole cost and expense be responsible to restore the Site, including the picnic area, to a clean, sanitary and orderly condition by picking-up trash and debris, properly disposing in refuse dumpster, as well as mopping-up any spills and wiping-off any and all appliances, counters, tables, chairs, sinks and water coolers after each use. The Well hereby waives all right to make repairs at the expense of City, and The Well hereby waives all rights provided for by the Civil Code of the State of California to make said repairs. By entering into the Site, The Well shall be deemed to have accepted the Site as being in good and sanitary order, condition and repair, and The Well agrees on the last day of said term or sooner termination of this License to surrender the Site with -6- 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. 5.2 Free from Liens. During the period of any construction and thereafter The Well shall keep the Site free from any liens arising out of any work performed, material furnished, or obligation incurred by The Well or alleged to have been incurred by The Well. Upon completion of construction of the improvements incurred at The Well's expense, The Well shall assure that lien releases are obtained for all mechanics liens. 6.0 INSURANCE AND INDEMNIFICATION. 6.1 Insurance Provided by City. City shall maintain fire and extended coverage insurance throughout the term of this License in an amount equal to at least ninety percent (90%) of the replacement value of any building on the Site, together with such other insurance, coverages and endorsements as may be required by City's lender, or as City may determine in its sole discretion. The Well understands that City's coverages hereunder do not include The Well's furniture, fixtures, or merchandise. The Well hereby waives any right of recovery from City, its officers and employees, and City 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 The Well. (a) Food Preparation. The Well, if involved in food preparation and sales as a cafe, restaurant, or similar use, and/or food takeout service, shall with City's consent install at The Well's expense any fire protective systems in grill, deep fry, and cooking areas which are required by city, county, and state fire ordinances, and such system when installed shall qualify for full fire protective credits allowed by the fire insurance rating and regulatory body in whose jurisdiction the Site are located. (b) The Well to Provide Personal Property Insurance. The Well, 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 Site from loss or damage to the extent of their full replacement value and shall provide plate glass coverage. (c) The Well to Provide Liability Insurance. During the entire term of this License, the The Well shall, at the The Well's sole cost and expense, but for the mutual benefit of City and The Well, maintain comprehensive general liability insurance insuring against claims for bodily injury, death or property damage occurring in, upon or about the Site and on any sidewalks directly adjacent to the Site 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 -7- $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 City so elects City may provide such insurance and, in such event, The Well agrees to pay its pro rata share of the cost of said insurance on the same basis as provided in Section 6.1 above. (d) The Well to Provide Worker's Compensation Insurance. If applicable, The Well shall, at the 'The Well's 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 Well and the City 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 Well in the course of conducting The Well's business in the Site. (e) General Provisions Applicable to The Well's Insurance. All of the policies of insurance required to be procured by The Well pursuant to this Section 6.2 shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurers shall waive all rights of contribution they may have against the City, 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 City. Prior to the Commencement Date or such earlier date as The Well takes possession of the Site for any purpose; and at least 30 days prior to the expiration of any insurance policy, The Well shall provide City with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages written by insurance companies acceptable to City, licensed to do business in the state where the Site are located and rated A:VII or better by Bests Insurance Guide. In the event the Risk Manager of City ("Risk Manager") determines that (i) The Well's activities in the Site creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverages be obtained, The Well agrees that the minimum limits of any insurance policy required to be obtained by The Well may be changed accordingly upon receipt of written notice from the Risk Manager, provided that The Well shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. City and The Well hereby waive any rights each may have against the other on account of any loss or damage occasioned by property damage to the Site, its contents, or The Wells trade fixtures, equipment personal property or inventory arising from 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 City or The Well against such loss, waive any right of -8- 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 City. The Well, as a material part of the consideration to be rendered to City under this License, hereby waives all claims against City for damage to equipment or other personal property, trade fixtures, Licensehold improvements, goods, wares, inventory and merchandise, in, upon or about the Site and for injuries to persons in or about the Site, from any cause arising at any time. The Well agrees to indemnify the City, 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 The Well, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Site or the parking and common areas by The Well or its employees and customers, or arising from the failure of The Well to keep the Site in good condition and repair, as herein provided, or arising from the negligent acts or omissions of The Well hereunder, or arising from The Well's negligent performance of or failure to perform any term, provision covenant or condition of this License, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, -and in connection therewith: (a) The Well 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) The Well will promptly pay any judgment rendered against the City, 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 The Well hereunder, and The Well agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against The Well 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 The Well hereunder, The Well agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. -9- 7.0 DAMAGE AND DESTRUCTION OF SITE. In the event of (a) partial or total destruction of the Site during the term of this License which requires repairs to the Site, or (b) the Site being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than The Well's act, use or occupation, which declaration requires repairs to the Site, City may, at its option, make said repairs provided The Well gives to City 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 License except that The Well 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 The Well in the Site. Nothing herein shall be construed as limiting the City's right to terminate this License at any time as otherwise provided in this License and The Well shall have no recourse against the City as a result of the City's exercise of its right to terminate this License. ASSIGNMENT AND SUBLETTING. 7.1 City's Consent Required. The Well shall not, either voluntarily or by operation of law, assign or encumber The Well's License estate hereunder or sublet the Site, or any portion thereof (all of which shall be referred to herein as a "Transfer"), without City's prior written consent in each instance, or permit the Site to be occupied by anyone other than The Well or The Well's employees, contractors, and volunteers. Consent by City to one or more Transfers of this License or of the Site or to any such occupancy shall not release The Well from the requirement that City's consent be obtained to all subsequent Transfers. 7.2 No Release. No transfer by The Well, or by any of The Well's successors or assigns in interest, even with the consent of City, shall relieve The Well of its obligations to perform all of the other obligations to be preformed by The Well hereunder. The acceptance by City of any provision of this License or to be a consent to any Transfer. Any waiver based upon any alleged oral statement or warranty. 8.0 DEFAULT AND REMEDIES. 8.1 Default by The Well. In addition to the defaults described elsewhere in this License, the occurrence of any one or more of the following events shall constitute a default and breach of this License by The Well: (a) the failure to pay any rental or other payment required hereunder to or on behalf of City more than three (3) days after written notice from City to The Well that The Well has failed to pay rent when due; (b) the failure to perform any of The Wells 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 City to The Well 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 Site by The Well; (d) the making by The Well of a general assignment for the benefit of creditors; (e) the filing by The Well of a voluntary petition in bankruptcy or the adjudication of The Well as a bankrupt; (f) the appointment of a receiver to take possession of all or substantially all the assets of The Well located at the Site or of The Wells License interest in the Site; (g) .10- the filing by any creditor of The Well 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 The Well or The Well's License where such an attachment, execution or seizure is not discharged within sixty (60) days. Any repetitive failure by The Well 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 License 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 The Well to perform its obligations hereunder. In the event of any such default or breach by The Well, City may at any time thereafter, without further notice or demand, rectify or cure such default, and any :sums expended by City for such purposes shall be paid by The Well to City upon demand and as additional rental hereunder. In the event of any such default or breach by The Well, City shall have the right (i) to continue the License in full force and effect and enforce all of its rights and remedies under this License, including the right to recover the rental as it becomes due under this License, or (ii) City shall have the right at any time thereafter to elect to terminate the License and The Wells right to possession thereunder. Upon such termination, City shall have the right to recover from The Well: (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 The Well 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 The Well proves could be reasonably avoided; and (iv) Any other amount necessary to compensate the City for all the detriment proximately caused by The Well's failure to perform its obligations under the License 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 -It- amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%), but in no event greater than ten percent (10%). As used herein "rental" shall include the Monthly Rental, percentage rental Equal to the average percentage rental paid or payable by The Well for the last twelve (12) months or such lesser period as The Well 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 City may make to mitigate the damages caused by The Well's breach of this License shall not constitute a waiver of City's right to recover damages against The Well hereunder, nor shall anything herein contained affect City's right to indemnification against The Well for any liability arising prior to the termination of this License for personal injuries or property damage, and The Well hereby agrees to indemnify and hold City harmless from any such injuries and damages, including all attorney's fees and costs incurred by City in defending any action brought against City for any recovery thereof, and in enforcing the terms and provisions of this indemnification against The Well. Notwithstanding any of the foregoing, the breach of this License by The Well, or an abandonment of the Site by The Well, shall not constitute a termination of this License, or of The Well's right of possession hereunder, unless and until City elects to do so, and until such time City shall have the right to enforce all of its rights and remedies under this License, including the right to recover rent, and all other payments to be made by The Well hereunder, as they become due. Failure of City to terminate this License shall not prevent City from later terminating this License or constitute a waiver of City's right to do so. 8.2 No Waiver. Acceptance of rental hereunder shall not be deemed a waiver of any default or a waiver of any of City's remedies. 8.3 City's Default. City shall not be in default unless City fails to perform obligations required of City within a reasonable time, but in no event later than thirty (30) days after written notice by The Well to City and to the holder of any first mortgage or deed of trust covering the Site whose name and address shall have theretofore been furnished to The Well in writing, specifying wherein City has failed to perform such obligation; provided, however, that if the nature of City's obligation is such that more than thirty (30) days are required for performance then City shall not be deemed in default if City commences performance within a (30) day period and thereafter diligently prosecutes the same to completion. In no event shall The Well have the right to terminate this License as a result of City's default and The Well's remedies shall be limited to damages and/or an injunction. 9.0 CONDEMNATION. In the event a condemnation or a transfer in lieu thereof results in a taking of any portion of the Site, City may, or in the event a condemnation or a transfer in lieu thereof results in a taking of twenty-five percent -12- (25%) or more of the Site, The Well may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this License. The Well shall not be entitled to share in any portion of the award and The Well hereby expressly waives any right or claim to any part thereof. The Well shall, however, have the right to claim and recover, only from the condemning authority (but not from City or the City's Community Redevelopment Agency), any amounts necessary to reimburse The Well for the cost of removing stock and fixtures. 10.0 MISCELLANEOUS. 10.1 Entry and Inspection. The Well shall permit City and its agents to enter into and upon the Site at all reasonable times for the purpose of inspecting the :same or for the purpose of maintaining the Site as required by the terms of this License or for the purpose of posting notices of non-liability for alterations, additions, or repairs, or for the purpose of placing upon the property in which the Site is located any usual or ordinary "For Sale" signs or any signs for public safety as determined by City. City shall be permitted to do any of the above without any rebate of rent and without any liability to The Well for any loss of occupation or quiet enjoyment of the Site thereby occasioned. The Well shall permit City, at any time within six (6) months prior to the expiration of this License, to place upon the Site any usual or ordinary "For License" signs, and during such six (6) month period City or his agents may, during normal business hours, enter upon said Site and exhibit same to prospective The Wells. 10.2 Estoppel Certificate. If, as a result of a proposed sale, assignment, or hypothecation of the Site or the land thereunder by City, or at any other time, an estoppel certificate shall be requested of The Well, The Well agrees, within ten (10) clays 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 City. The Well 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. 10.3 Jurisdiction and Venue. The parties hereto agree that the State of California is the proper jurisdiction for litigation of any matters relating to this License, and service mailed to the address of The Wells 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 The Well agrees to submit to the personal jurisdiction of such court in the event of such litigation. 10.4 Partial Invalidity. If any term, covenant, condition or provision of this License 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. 10.5 Successors in Interest. The covenants herein contained shall, subject to the provisions as to assignment, apply to and bind the heirs, successors, -13- executors, administrators and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. 10.6 No Oral Agreements. This (i) License covers in full each and every agreement of every kind or nature whatsoever between the parties hereto concerning this License, (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. The Well acknowledges that no representations or warranties of any kind or nature not specifically set forth herein have been made by City or its agents or representatives. 10.7 Authority. In the event that The Well is a corporation or a partnership, each individual executing this License 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 License 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 License is binding upon said corporation or partnership in accordance with its terms. The Well represents and warrants to City that the entering into this License does not violate any provisions of any other agreement to which The Well is bound! 10.8 Relationship of Parties. The relationship of the parties hereto is that of City and The Well, and it is expressly understood and agreed that City does not in any way or for any purpose become a partner of The Well in the conduct of The Well's business or otherwise, or a joint venturer with The Well, and that the provisions of this License 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. 10.9 Nondiscrimination. The Well herein covenants by and for itself, its heirs, executors, administrators and assigns and all persons claiming under or through it, and this License 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 Site herein Licensed, nor shall the The Well 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 The Wells, lessees, sublessees or vendees in the Site. 10.10 Notices. Wherever in this License it shall be required or permitted that notice and demand be given or served by either party to this License 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 City, and if to The Well, as :specified in Section 1.7. Either party may change the address set forth herein by written -14- notice by certified mail to the other. Any notice or demand given by certified mail shall be effective one (1) day subsequent to mailing. 10.11 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 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 License. 10.12 Exhibits and Addenda. The Exhibits and Addenda attached to this License 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 License, the terms and provisions of the Addenda shall prevail. [SIGNATURES ON NEXT PAGE] -15- IN WITNESS WHEREOF, the City and The Well have duly executed this License together with the herein referred to Exhibits which are attached hereto, on the day and year first above written in Palm Springs, California. "CITY" ATTEST: CITY OF PALM SPRINGS, a municipal corporation By: By: City Clerk City Manager REVIEWED AND APPROVED By: City Attorney "THE WELL" THE WELL IN THE DESERT, a California non-profit public benefit corporation By: Its: By: Its: -16- EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE 26.73 Acres M/L in Lots 25 & 26 MB 014/652 SD Palm Valley Colony Lands EXHIBIT"A" TO LICENSE EXHIBIT "B-1" PLOT PLAN OF SITE EXHIBIT`B-F TO LICENSE EXHIBIT "B-2" BUILDIING PLAN OF EXCULSIVE AND NON EXCLUSIVE AREAS FLOOR PLAN ON NEXT PAGE EXHIBIT`B-2" TO LICENSE EXHIBIT "C" ESTOPPEL CERTIFICATE The Well: City: CITY OF PALM SPRINGS, a municipal corporation Date of License: Site: 'To: The undersigned hereby certifies as follows: 1. The undersigned is the The Well ("The Well") under the above-referenced License ("License") covering the above-referenced Site (Site). 2. The License constitutes the entire agreement between City under the License (City) and The Well with respect to the Site and the License has not been modified, changed, altered or amended in any respect except as set forth above. 3. The term of the License commenced on , 20 and, including any presently exercised option or renewal term, will expire on 20_. The Well has accepted possession of the Site and is the actual occupant in possession thereof and has not sublet, assigned or hypothecated its Licensehold interest. All improvements to be constructed on the Site by City have been completed and accepted by The Well and any The Well construction allowances have been paid in full. 4. As of this date, to the best of The Well'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 The Well or City. To the best of The Wells knowledge, no claim, controversy, dispute, quarrel or disagreement exists between The Well and City. 5. The Well is currently obligated to pay Annual Rent in installments of$_ per month, and such monthly installments have been paid not more than one month in advance. In addition, the License requires The Well to pay percentage rent each month in the amount of percent ( %) and percentage rent has been paid through , 20. To the best of The Wells knowledge, no other EXHIBIT"C" TO]LICENSE rent has been paid in advance and The Well has no claim or defense against City under the License and is asserting no offsets or credits against either the rent or City. The Well has no claim against City for any security or other deposits except $ which was paid pursuant to the License. 6. The Well has no option or preferential right to License or occupy additional space within the Property of which the Site are a part. The Well has no option or preferential right to purchase all of any part of the Site nor any right or interest with respect to the Site other than as The Well under the License. The Well has no right to renew or extend the term of the License except as set forth in the License. 7. The Well has made no agreements with City 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 License. 8. There has not been filed by or against The Well 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 The Well. 9. All insurance which The Well is required to maintain under the License has been obtained by The Well and is in full force and effect and all premiums with respect thereto have been paid. Dated this day of 120 By: Its: EXHIBIT"C, TO LICENSE EXHIBIT "D" RULES AND REGULATIONS EXHIBIT"D" TO]LICENSE EXHIBIT A - LEGAL DESCRIPTION OF THE SITE EXHIBIT B-1 - PLOT PLAN OF SITE EXHIBIT B-2 - BUILDING PLAN OF EXCULSIVE AND NON EXCLUSIVE AREAS EXHIBIT C - ESTOPPEL CERTIFICATE EXHIBIT D - RULES AND REGULATIONS i MINUTE ORDER NO. APPROVING A LICENSE AGREEMENT WITH THE WELL IN THE DESERT, FOR THE PURPOSE OF OPERATING A HOT MEAL FEEDING PROGRAM AT THE FREY BUILDING, 1901 EAST BARISTO ROAD, PALM SPRINGS, THROUGH JUNE 30, 2007. I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that this Minute Order, Approving a License Agreement with the Well in the Desert, for the purpose of operating a hot meal feeding program at the Frey Building, 1901 East Baristo Road, Palm Springs through June 30, 2007, adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 12th day of July, 2006. James Thompson, City Clerk