HomeMy WebLinkAbout6/18/2008 - STAFF REPORTS - 5.A. Fp P.LA4
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q``FOPIT% City Council Staff Report
DATE: June 18, 2008 NEW BUSINESS
SUBJECT: APPROVAL OF A LEASE AGREEMENT WITH AMERICANOS USA,
LLC A WHOLLY-OWNED SUBSIDIARY OF GREYHOUND LINES, INC.,
FOR A NON-EXCLUSIVE USE OF THE PALM SPRINGS TRAIN
STATION ON GARNET STATION ROAD
FROM: David H. Ready, City Manager
BY: Community & Economic Development Department
SUMMARY:
The approval of this Lease Agreement will allow for the relocation of Greyhound's inter-
city bus terminal facility from its prior downtown location at 311 North Indian Canyon
Drive to a location at the Palm Springs Train Station on Garnet Station Road, adjacent
to the Union Pacific Railway tracks. In January 2008, the City and Americanos USA,
LLC (doing business as Crucero) entered into a Train Station Use Agreement for a
period of ninety days and then into a new Train Station Use Agreement for an
additional 90 day period, during which City staff and representatives of Americanos
USA LLC ("Crucero") have been negotiating a Lease Agreement that would allow the
company to develop a permanent presence at the site. While originally it was
anticipated that the regional bus stop operations would include the construction or
installation of a ticket office/waiting room, Crucero has proposed operating from the
train station in a manner similar to Amtrak utilizing the existing infrastructure.
Americanos USA, LLC, a wholly-owned subsidiary of Greyhound Lines, Inc. merged
the operations of Crucero USA, LLC into Americanos USA, LLC effective December
31, 2007- Crucero USA, LLC was the legal entity that started operations in Palm
Springs under the original Train Station Use Agreement. While the formal legal entity
Crucero USA, LLC has ceased to exist, Americanos USA, LLC continues to operate
Crucero as a brand. To comply with all laws and regulations the Crucero "assumed
name" has been filed and approved by the state of California.
The companies (Greyhound and Crucero) sell each other's tickets, much like code-
sharing among airlines. A rider buying a "Greyhound" ticket for a Palm Springs
departure, for example, would leave in a Crucero bus and possibly transfer buses at a
ITEM NO.60 p'�
larger terminal, such as Los Angeles, in an arrangement similar to the Skywest Airlines
service at the Palm Springs Airport.
Greyhound Lines, operating through its subsidiary Crucero, has not had a legal location
in the City since its lease on the downtown space expired on June 30, 2007. The City
recently enacted a moratorium on transportation terminal uses in the M-1 and C-2
zones, which resulted in the adoption of an ordinance which requires a Conditional Use
Permit for such uses. This site is in the "W" zone and is currently operated as a
transportation terminal use, as it currently serves Amtrak several days per week.
Currently the City pays for security to patrol the Train Station site, and for janitorial
service to clean the single unisex restroom there. Under the Train Station Use
Agreements, Crucero paid the City $500/month to help offset costs it currently bears at
the Train Station. Under the Lease Agreement, Crucero will pay the City $1,300.00
monthly to operate out of the Train Station. Revenue from the Lease Agreement will
help to offset some of the City's current costs as well as any additional costs incurred
by their operations. The Lease Agreement will have a term of three years with an
option to renew the lease for an additional two year term. The use of the site by
Crucero has also significantly increased the use of an excellent but underutilized public
transportation facility.
RECOMMENDATION:
1. Approve Agreement No. Lease by and between Americanos USA LLC,
a wholly owned subsidiary of Greyhound Lines, Inc., and the City of Palm
Springs for non-exclusive use of the City-owned Palm Springs Train Station on
Garnet Station Road.
2. Authorize the City Manager or his designee to execute all the necessary
documents.
BACKGROUND:
City staff has worked on the relocation of the downtown Greyhound station since 2003.
In 2004, the City and Greyhound attempted to negotiate a lease for the Boxing Club
Building, as well as the Airport's taxi-bus holding facility or a terminal counter in the
main airport terminal (similar to those utilized by rental car companies). In the end,
neither of these alternatives was deemed desirable by the Airport or Greyhound,
largely due to cost and timing, and as a result, these options were eliminated from
further consideration.
Greyhound extended its lease at the 311 North Indian Canyon Drive location in 2004
for a period of three years. That lease expired in June, 2007 and the new owner of the
property opted not to renew the lease. The manager at that location retired and
Crucero, which operates the bus service in Palm Springs, entered an agreement with a
business on Vista Chino Road to sell tickets and provide the service. That location was
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in the M-1-P zone, which would have required a Conditional Use Permit for the use.
Given the level of complaints from the commercial neighbors in the center about the
impacts of the bus terminal land use, and the inability to provide air conditioning and
shade for those waiting for buses, Greyhound was advised to either apply for a
Conditional Use Permit or seek another more appropriate location.
Greyhound and Crucero staff looked for an alternate location in Palm Springs for
several months last summer. They chose to move the operation to a restaurant on
Date Palm Drive in Cathedral City, but ran into similar permitting problems there and
closed that operation after approximately one week.
Last fall, there was no interstate bus service in the Western Coachella Valley. The
closest terminals were in Indio and Panning. One possible location Crucero
considered was a small commercial space on San Rafael Road, but that site was
removed from consideration due to the moratorium on transportation terminal uses in
the M-1 zone and the ordinance change that would require the Conditional Use Permit.
There also turned out to be considerable neighborhood opposition to the use at that
location. Staff then attempted to find an alternative location for the bus service, and
revisited several of the airport options. Due to TSA concerns and potential cost,
however, these options were again ruled out.
In November 2007, Crucero indicated they were interested in operating at the Train
Station. While it is distant from the center of town, the site offers easy freeway access
and closer access to riders from Desert Hot Springs. It also has a large, well-lighted
parking lot and bus pullouts. There is currently a payphone and a single unisex
restroom accessed by the Amtrak conductors, as well as a shaded structure on the
platform. The City entered negotiated a Use Agreement that allows Crucero to bring
buses to the site, both to drop off and pick up passengers. There have been eight
buses per day scheduled into Palm Springs that have dropped off/picked up
passengers at the train station site since January 2008. During the term of the Use
Agreement tickets were not sold on the site but rather over the Internet or other means.
Crucero paid the City a fee of$500 per month for the use of the facility, which helped to
offset a portion of the City's costs for operating the facility. The initial use agreement
commenced on January 15, 2008 and was effective for 90 days until April 15, 2008. A
new train station use agreement was entered into in April 2008 and will be effective
until July 15, 2008. During the period that Crucero has operated from the train station,
they have complied with the temporary use agreements and provided an on-site
company representative to oversee the operation and provide customer service
support, all within the existing structure of the Train Station waiting area.
With the relocation to the train station, Crucero experienced a material decline in the
passenger departures from Palm Springs. It has been their observation that a
significant portion of those passengers are now serviced from the Indio Greyhound
station, which provides a richer set of departing schedules to points within the
Greyhound and affiliate networks. Arriving passengers to Palm Springs are down
slightly, but still consistent with the historical inbound passenger trends experienced
over the last year.
Crucero has observed that friends and family pick up 80% of arriving passengers, while
the remainder relies on cab service. Coordination of the Crucero schedules with the
Palm Springs intercity bus schedules at the Train Station would be a great local
transportation alternative for Crucero customers and the community. Staff met with
Sunline in January 2008 to discuss alternatives for expansion of bus services to the
train station and have obtained cost estimates for a new bus service that would extend
from the Palm Springs Mall through downtown and along Indian to the Train Station
and ultimately to the 10 Freeway. Staff also obtained an estimate for the extension of
the service from the Palm Springs Mall to the Airport, which would completely link the
airport, downtown, and train/bus station. While passenger volumes may not justify this
new Sunline route at the present time, it may be more viable upon future development,
particularly the College of the Desert West Valley Campus.
Crucero and Greyhound have lost essentially all the package express services
business that once frequented their "in city" bus terminal. This was a significant
segment of their business in the City. The former package express clients have
developed alternate package delivery relationships with the major freight delivery
providers that provide outlets within the City.
During the last six months, Crucero also has experienced tremendous increases in
operating costs. This is directly related to diesel fuel costs and the materials that they
rely on that are delivered via truck. Additionally their labor costs continue to rise as
they keep pace with wage pressures.
As a result of these increased costs, Crucero has found it necessary to adjust their
historical operation to the current financial conditions and have determined that they
cannot operate at the necessary profit margin if they are required to build and staff a
terminal facility at the Train Station. The costs of construction were analyzed for a
range of options from a permanent structure to a temporary "construction trailer, in
reaching this conclusion. Therefore, Crucero proposes to operate from the train station
in the same manner that Amtrak serves the facility as follows:
• A local representative, e.g. a security service is engaged to cycle through and
monitor the facility during periods that schedules arrive and depart.
• Protocols are established with Crucero, the City and local representative to
ensure that customer safety and security is upheld.
• Passengers are sold tickets to their destinations via an on-board ticketing
system, which already exists in a variety of forms within the Greyhound system.
• Limited improvements are made by Americanos USA LLC, to the facility to
support the customer experience including the addition of payphone(s) and
000004
scheduled services timetable board with posted 800 numbers for
Crucero/Americanos USA LLC customer service questions.
The long term lease agreement will allow for Crucero to operate in an efficient manner
that would provide a cost justifiable solution to continue to serve the local community
with inter-city bus services.
FISCAL IMPACT-
The Lease Agreement would provide the City revenue of $1,300.00/month to help
offset costs it currently bears at the Train Station including any incremental increase in
security and utilities as a result of bus service operations- The cost to increase the
service contract with the current security company to include monitoring bus service
operations is $900/month based on the current bus schedule. The incremental
increase in utility costs as a result of bus services is expected to be insignificant.
Therefore, thi Agreement will create a net positive financial impact on the City.
Jdhn S.Paym nd, Director of Diana Shay
r C m nity conomic Development Redevelopment Coordinator
DAVID H. READY Tom W' on
Executive Director Assistant City Manager
Attachments:
1. Train Station Lease Agreement
000005
LEASE
By and Between
THE CITY OF PALM SPRINGS
and
A►xxeiricanos USA, LLC
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LEASE
THIS LEASE ("lease") is made and entered into day of , 2008, by
and between the CITY OF PALM SPRINGS, a municipal corporation (referred to variously as
"Landlord" or "City"), and Americanos USA, LLC (dba Czucero) 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. WHEREAS Americans USA, LLC is a wholly-owned subsidiary of Greyhound Lines,
Inc., whereby Czucero operates as a regional carrier for Greyhound-
D. WHEREAS Greyhound and Americanos 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 Americanos operates a regional and intercity bus service that provides
transportation from Palm Sprigs and cooperates with its parent, Greyhound Lines, Inc.
on providing nationwide intercity bus service.
F_ WHEREAS the City owns the Train Station located on Gannet Station Road in Palm
Springs, California ("Facility"). The Facility is used by Amtrak to load and unload
intercity rail passengers.
G. WHEREAS Azntrak does not use the Facility full time. Americanos desires to use the
Station during 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 Palm
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.
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1.1 Premises. The "Prerises" shall refer to that certain real property located in
the County of Riverside, State of California, as depicted on the Plot Plan attached as Exhibit "A-
1"hereof. The Premises shall be nonexclusive and also used by Amtrak.
1.2 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 terra of two (2) years.
1.4 Rental. Rental shall be 51,300.00 per month, with Tenant to pay all
operational, utility and maintenance cost necessary to operate the Premises in accordance with
the maintenance standards of Section 5.3 and the other 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). In addition, should cost for Security
Contractor increase as a result of 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 Arntrak Train Station and addition of payphone and directional signage for bus
services. Tenant shall make good faith efforts to coordinate usage of the Premises with Arntrak.
1.7 Tenant' s Address for Notices.
Americans USA, LLC
15110 North Dallas Parkway
Dallas, TX 75248
Telephone:
With a copy to:
Americans Legal Counsel
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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.
22 Termination By Landlord_ Landlord shall have the right to terminate this
Lease effective on any anniversary of the Commencement Date, with or without cause, by
providing Tenant with at least sixty(60) 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 term 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
filly 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 tern 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 stun 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, 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 Property Taxes. During the tern 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.
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3A Utilities. Tenant's payment of monthly rental shall include 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.
Tenant will pay prorate share of utilities that are incremental from the historical base and
incidental to their usage of the facility.
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) 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.
3.6 Interest. Any sum to be paid pursuant to the terms of this Lease not paid
when due shall bear interest from and after the due date until paid at a rate equal to three percent
(3%) over the reference rate being charged by Bank of America, N.A. from time to time during
such period so long as the rate does not exceed the maximum non-usurious rate permitted by law
in which case interest shall be at the maximum non-usurious rate allowed by law at the time the
sum became due.
4.0 USE OF THE PREMISES.
4.1 Permitted Use. The Landlord hereby leases to Tenant and Tenant hires fi-om
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) pomograpbic 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.
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_
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Tenant shall not engage in any activity on or about the Premises that violates any
Enviromnental Law, and shall promptly, at Tenant's sole cost and expense, take all investigatory
and/or remedial action required or ordered by any govenunental 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 Enviromnental 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 el 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 tern "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 terns "'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 Sitms. 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 pen-nit 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.
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4.6 Rules and Recnilations. Tennant 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
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 nonperi'ormance 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 Hiles and regulations of Landlord_
Landlord may require that any such alterations be removed prior to the expiration of the tern
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 52 hereof Any and all fixtures and
appurtenances installed by Tenant shall confomr 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 hinitation, 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 tern or sooner tennination 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 construction 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
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completion of construction of the improvements Tenant shall assure that lien releases are
obtained for all mechanics liens.
5.4 Maintenance and Repair of' Common Area. Tenant shall share the cost of
maintaining, repairinn and cleaning the non-exclusive Premises, referred to as the Common
Area, which includes the parking lot and platform landscaping, with the City. Each party shall
pay one half of the cost_ Tenant shall be responsible for any direct costs incurred in the Common
Area that could not be construed as due to normal operations, including but not limited to
cleanup of construction debris or extraordinarily heavy use.
6.0 INSURANCE AND INDEMNIFICATION.
6.1 Insurance Provided by Landlord. Landlord shall maintain fire and extended
coverage insurance throughout the term of this Lease in an amount equal to at least ninety
percent (90%) 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 determine in its sole discretion. Tenant hereby waives any right of recovery
from 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.
(b) Tenant to Provide Liability Insurance. During the entire tern 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, death 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 (51,000,000.00) for bodily injury, death, and property damage or
(ii) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and
5500,000.00 products and completed operations and property damage limits of
$100,000.00 per occurrence and 5250,000.00 in the aggregate; provided, however, if
Landlord so elects Landlord may provide such insurance and, in such event, Tenant
agrees to pay its pro rata 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 arnount 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
IRV#21100 vl _�_
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 darnage to the Premises, its
contents, or Tenants 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 behal l' 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 indermiify the Landlord, its
officers, agents and employees against, and will hold and save there 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, fine 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
IRV#21100 vl _g_
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 firoan
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.
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.
72 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
IRV 72I 100 vl _9_
gives to Landlord thirty (30) days written notice of the necessity therefor. No such partial
destruction (including any destruction necessary in order to snake 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 tern of this Lease the Premises are damaged as a result of fire
of 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 terminate 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 tern-iinate 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 terns 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
consent shall not be unreasonably withheld. 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 terns
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 form 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 assigmment, subletting, occupation
IRV#21100 v1 _10_
000®
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 assigiument 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(1/2) 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 Rent 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) 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 abandomnent 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
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 tern 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
IRV Y21100 vl -11-
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 tenninate 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 tennination;
(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 tern 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 (1M), 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 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
tenns 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
IRV#21100 v1 -12_
® i➢�lll1G
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 be 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
fixtures. If this Lease is not terminated as above provided, Landlord shall use a portion of the
condemnation award to restore the Premises.
IRV#21100 vl -13-
12.0 MISCELLANEOUS.
12.1 Entry and hxspection. 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 six (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. lf, 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. It' any tens, 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
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
IRV#21100 vl -14-
009620
any kind or nature not specifically set forth herein have been made by Landlord or its agents or
representatives.
12.7 Authority. 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, transferring,
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 party may
change the address set forth herein by written notice by certified mail to the other. Any notice or
demand given by certified mail shall be effective one (1) day subsequent to mailing.
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 party's
consent to or approval of any act by the other party requiring the party's consent or approval
shall not be deemed to waive or render unnecessary the other party's consent to or approval of
any subsequent act. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Lease.
iev#2n oo Vi -15-
00092k
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 tenns
and provisions of an Addenda and the terms and provisions of this Lease, the teens and
provisions of the Addenda shall prevail.
[SIGNATURES ON NEXT PAGE]
IPV 411100vI -16-
a0002
IN WITNESS WHEREOF, the patties have duty 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
By: By:
City Clerk City Manager
REVIEWED AND APPROVED
WOODRUFF, SPRADLIN & SMART
By:
Douglas C. Holland
City Attorney
"TENANT"
By:
Its:
By:
Its:
raV02no0Vi -17-
000023
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PREMISES
IRV 121100 vl
EXHIBIT"A"
TO i,FASE�
. •- 262'7C1
EXIISSIT "A"
LEGAL DESCRIPTION
Parcel I.
That lion of the Southeast quarter of the Northeast quarter of Section 22,
Township 3 South, Range 4 East, San Pjz * ri;nn Meridian, as sh7,m by United
States Governme-nt survey, which lies southwesterly of the Southwesterly line of
the right of way of Southern Pacific Raibl bad CUiparty, as established by Act of
Congress of March 3, 1875-
IkCept arty portion tha f includ.-d within the East 75 feet of the Southeast
quartex of the Bcr* heast quarter of said Section as ccnveye6 to the County of
Riverside by Deed recorded Slily 13, 1950 in Book 7188, Page 493, Official
Recezds.
2F2'700
EXHIBIT "A"
LEGAL DESCRIPTION
Parcel 2.
All that portion of the Southeast quarter of the northeast quarter of section
22, M:F, p 3 South, Rama 4 Fast, Sm Bernardino Base and Meridian, in the
Wunty of Riverside, State of California, a5 Shoran by United States GOVe=ff ent
Survey, particularly described as foil cws:
Beganr ng at the point of intersection of the South line of the Southeast quarter
of the Northeast quarter of said Section 22 with the Southwesterly lime of the
right of way of the Southern Pacific Fau oaa 4Gmpauy, as establishedct•by A of
Ctngrue8 M-Arc 3, iVs;
thenoe Westerly on the South line of said Southeast quarter of Northeast quarter,
1,071.00 feet to a point 166.00 feet Fa5terly from the Southwest c=nrar of said
southeast rniarter 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
ra;lrnad right of way from the point of beginning;
thence Soucheasterly on the Southwesterly Line of said railroad right of way,
500.00 feet to the paint of begisuiing;
Except any portion thereof included within the East 75.00 feet of the Southeast
ql arter of the N theast quarter of said Section, as describxd by deed to the
wry of Rivrz3ide, Recorded July 13, 1950 in Hook 1100 Page 493 of Official
Rewords of Ri^etzrside County, Califoznia.
000O26
EXI-11131T "B-F
PLOT PLAN OF PREMISES
IRV fi21100 A
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TO LLASE
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EXHIBIT"B-2"
PLAN OF COMMON AREA AND TENANT'S EASEMENT
IRV P,2I IUO vI
FXHIBIT"B-2"
TO LEASE
EXHIBIT"C"
ESTOPPEL CERTIFICATE
Tenant: AMERICANOS USA
Landlord: CITY OF PALM SPRINGS, a
California Charter City
Date of Lease:
Premises:
To:
The undersigned hereby certifies 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 L_ °/a) 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 421100 V I
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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:
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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 tiree 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 permit 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.
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EXHIBIT"E"
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EXI-11131T "E"
INSURANCE REQUIREMENTS-SPECIAL PROVISIQNS
Requirements for personal properly insurance under Section 6.2 (a) is waived.
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