HomeMy WebLinkAbout3/3/2004 - STAFF REPORTS (7) DATE: March 3, 2004
TO: City Council
FROM: Fire Chief
GROUND LEASE AGREEMENT WITH SOUTH COAST AIR QUALITY MANAGEMENT
DISTRICT
RECOMMENDATION:
It is recommended that the City Council approve a ground lease agreement with
the South Coast Air Quality Management District for their use of space at Fire
Station #3 (443).
SUMMARY:
The City and the South Coast Air Quality Management District (SCAQMD)
entered into a one page Letter of Understanding more than 15 years ago, which
permitted the SCAQMD to install air sampling equipment at Fire Station #3 (590
E. Racquet Club Road). The SCAQMD has been paying the City $150 monthly
for the use of the utilities at Fire Station #3. Over the years, the SCAQMD's
space demands have increased. It is desired by the City to formalize the long-
term understanding by establishing a ground lease with SCAQMD. The
proposed ground lease would commence retroactive to January 1, 2003, with a
monthly rent of $650, and permit an annual rent adjustment (based on the
Consumer Price Index) for the 5-year term of the agreement.
BACKGROUND:
Approximately 15 years ago, the City's Finance Director at that time agreed to
permit the SCAQMD to place air sampling equipment at the fire station for a fee
of $150 per month. Over the years, SCAQMD's demands for space and utilities
increased, the value of the real property and commodities has increased, but the
rate remained the same. More than two years ago the Fire Department started
the process to formalize the understanding between the South Coast Air Quality
Management District (SCAQMD) and the City for the use of space at Fire Station
#3 (590 E. Racquet Club Drive). A formal appraisal was not conducted due to
this being a government-to-government agreement, and the cost of a formal
appraisal seemed excessive for this type of project. The staff in the City
Attorney's Office and the Fire Chief evaluated similar ground leases and
estimated the utility demands by the SCAQMD, and established a $650 per
month lease rate commencing on January 1, 2003, with annual Consumer Price
Index adjustment during the 5-year term. Negotiations between the City and
SCAQMD staff broke down on a couple occasions, resulting in a proposed
agreement with a commencement date of January 1, 2003, but not accepted by
SCAQMD until February, 2004.
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CONCLUSION:
If it is the desire of the City to establish a ground lease with the South Coast Air
Quality Management District for their use of space at Fire Station #3 (590 E.
Racquet Club Drive. The agreement would commence on January 1, 2003
(retroactive) with all terms and conditions prescribed in the ground lease
agreement.
Bary Freet, Fire Chief
APPROVE �
City Manager `
Attachments:
1. Minute Order No.
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Contract No. C04068
GROUND LEASE AGREEMENT
THIS GROUND LEASE (`Lease") made and entered into on this 1st day of January,
2003, by and between the CITY OF PALM SPRINGS, a Charter City and Municipal corporation
("LESSOR"), and SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, a public
entity ("LESSEE").
WITNESSETH THAT:
WHEREAS, LESSOR is the owner of that certain real property located at 590 E. Racq�t
Club Drive, Palm Springs, California("LESSOR'S Property"); and
WHEREAS, LESSEE desires to lease a portion of LESSOR's Property, together with a
license for access (including, but not limited to, access for vehicles and temporary parking) and a
right-of-way for utilities ("Property") for the purpose of installing and operating air monitoring
instruments, upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and of the mutual obligations and
agreements herein contained, the parties hereby agree as follows:
1. THE PROPERTY
A. The legal description of LESSOR's Property is contained in Exhibit "A-l"
attached hereto and by this reference incorporated herein.
B. The Property, which is the subject of this Lease, is contained within
LESSOR's Property, is situated substantially as shown on Exhibit "A-2" attached hereto and by
this reference incorporated herein.
2. LEASE AND IRREVOCABLE LICENSE AND EASEMENT
In consideration of the lease payments by LESSEE to LESSOR as agreed to
herein, LESSOR hereby leases the Property to LESSEE and grants to LESSEE an irrevocable,
non-exclusive and non-transferable license during the term of this Lease for ingress and egress,
including, but not limited to, access for vehicles and temporary parking, to and from the Property
seven (7) days a week, twenty-four (24) hours a day, for the purpose of installing and operating
air monitoring instruments. Notwithstanding the foregoing, LESSEE agrees, except in cases of
emergency, to notify the Facilities Supervisor of LESSOR prior to exercising said access license
and LESSEE agrees to cooperate with LESSOR in exercising said access license to the extent
reasonably necessary for LESSOR to manage and operate LESSOR's Property. Notification of
the Facilities Supervisor of LESSOR may be made by telephone or electronic facsimile or in
writing and is not required to conform to the requirements of Section 11 of this Lease as it is for
the purpose of facilitating the management and operation of LESSOR's Property. In connection
therewith, LESSEE hereby acknowledges that LESSOR permits third parties to utilize
LESSOR's Property from time to time and such use may from time to time temporarily interfere
with access to the Property; provided, however, that LESSOR shall cooperate with LESSEE to
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ensure that LESSEE is provided with the access needed to use the Property for the purposes
permitted hereunder and to use its best efforts to provide LESSEE with immediate access to the
Property in cases of emergency.
3. TERM, OPTION AND RENT
A. This Lease shall be for an initial term of five (5) years beginning on
January 1, 2003 ("Commencement Date") at a Rent of Six Hrmdred and Fifty Dollars ($650.00)
per month, which rent shall be paid without demand, deduction or offset in advance, on the first
day of each month to LESSOR or such other person, firm or entity as LESSOR may, from time
to time, designate in writing at least thirty(30) days in advance of any rent payment date.
B. LESSEE is hereby granted options to extend this Lease on the same terms
and conditions for two (2) additional five (5) -year periods after the original tern expires by
giving LESSOR written notice of its intention to do so at least ninety (90) days prior to the date
that the then-current tern would otherwise end. If LESSEE is in default on the date of giving the
option notice and said default is not cured in a timely marmer after written notice from LESSOR,
the option notice shall be totally ineffective, or if LESSEE is in default on the date the extended
tern is to commence and said default is not cured in a timely manner after written notice from
LESSOR, the extended term shall not commence and this Lease shall expire at the end of the
initial term or properly exercised extended term.
C. The parties agree that Rent shall be adjusted annually throughout the term
of this Lease on each amliversary of the Commencement Date by the percentage change in the
Consumer Price Index (1982-84 = 100) Urban Wage Earners and Clerical Workers - Los
Angeles, Anaheim, Riverside ("Index") published for the month that is three (3) months
preceding the adjustment date compared to the Index published twelve (12) months before the
month that is three (3) months preceding the adjustment date. If the hrdex is discontinued or
changed in such a way that it is impossible to obtain a continuous measurement of price changes,
the Index shall be replaced by a comparable governmental index. hi addition to the annual
adjustment at the exercise of each option term the Rent shall be reviewed to determine that at a
minimum it is at a market rate level.
4. USE OF THE PROPERTY
A. LESSEE may use the Property for the purpose of constricting,
maintaining and operating an air monitoring facility, including required instruments, and for any
other uses that are incidental thereto. The Property may be used by LESSEE for any lawful
activity in comiection with the provision of air monitoring services, including the maintenance
and operation of the air monitoring equipment facilities. LESSOR agrees, at no expense to
LESSOR, to cooperate with LESSEE in making application for and obtaining all licenses,
pennits and any and all other necessary approvals that may be required for LESSEE's intended
use of the Property. The construction of LESSEE's facility shall be at LESSEE's sole expense.
The facilities to be constructed by LESSEE upon the Property shall be subject to the prior written
approval of LESSOR, which shall not be unreasonably withheld, and shall be designed and
constructed in conformance with the requirements pertaining to the health, welfare or safety of
employees and the public and the American with Disabilities Act. LESSEE shall keep the
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Property and LESSOR's Property free from any liens arising out of any work performed,
material furnished, or obligation incurred by LESSEE or alleged to have been incurred by
LESSEE. LESSEE shall keep, maintain and repair the Property and LESSEE's facilities and
personal property located thereon in a good and sanitary order condition throughout the teen.
B. It is understood and agreed that LESSEE's ability to use the Property is
dependent upon LESSEE's obtaining all of the certificates, permits, licenses and other approvals
that may be required from any federal, state or local authority and/or any easements that are
required from any third parties. LESSOR shall cooperate with LESSEE, but at no expense to
LESSOR, in its efforts to obtain such approvals and/or easements, and LESSOR shall take no
action that will adversely affect the status of the Property with respect to LESSEE's proposed
uses thereof. If any application by LESSEE for any such certificate, permit, license, easement or
approval is finally denied or rejected, or if any such certificate, permit, license, easement or
approval is canceled, expires, lapses or is otherwise withdrawn or terminated, or if due to
technological changes LESSEE reasonably detennines that it will be unable to use the Property
for LESSEE's intended purposes, then LESSEE shall have the right to immediately terminate
this lease upon six (6) months advance written notice. LESSOR hereby designates LESSEE as
its agent for obtaining all certificates, permits (including, but not limited to, building permits),
licenses and other approvals required in conjunction with the operation of an air monitoring
facility.
C. LESSEE shall, at its sole cost and expense, comply with all of the
requirements of all inui icipal, state and federal authorities now in force or which may hereafter
be in force pertaining to the use of the Properly by LESSEE, 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.
5. TERMINATION
A. LESSEE shall notify LESSOR of LESSEE's exercise of its right to
terminate this Lease for the reasons permitted under Paragraph 4.13. above, and this Lease shall
terminate six (6) months after LESSOR's receipt of such notice. Such notice shall specify the
reasons for said termination. Such tennination shall relieve both parties of any further
obligations under this Lease, although each shall continue to have any and all remedies set forth
herein for any breach of a lease obligation which occurred prior to the date of termination.
B. Upon the expiration or tennination of this Lease, LESSEE shall remove its
personal property, facilities and fixtures and restore the Property to its original condition,
reasonable wear and tear excepted. Any removal of facilities, fixtures and/or personal property
from the Properly shall be at LESSEE's expense and accomplished in a good and workmanlike
manner. Any damage occasioned by such removal shall be repaired at LESSEE's expense so
that the Property can be surrendered in the same condition as when received and in good, clean
and sanitary condition, reasonable use, wear and tear excepted. At LESSOR's option, when this
Lease expires or is terminated and upon advance written notice to LESSEE, LESSEE shall leave
LESSEE's improvements, other than its personal property and fixtures (including, but not limited
to, conmrmications equipment), to become the property of LESSOR.-3- Vlsr
6. UTILITIES
Rent payment shall include the cost of utilities provided by LESSOR. In the
event that the cost of said utilities experiences a significant change, the parties agree to set a new
rental rate.
7. ASSIGNMENT AND SUBLETTING
LESSEE shall not assign this Lease or sublet the Property, or any interest therein,
without the prior written consent of LESSOR. LESSOR shall have sole and absolute discretion
as to whether to grant such approval. Any such assignment, regardless of whether the consent of
LESSOR is required, shall be subject to all of the terns and conditions of this Lease, including,
but not limited to, any restriction on use pursuant to the provisions hereof, and the proposed
assignee shall assume the obligations of LESSEE under this Lease in writing and in a form
satisfactory to LESSOR. Consent by LESSOR to airy assignment, subletting, occupation or use
by another person shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation or use by another person. Any assignment or subletting requiring the consent of
LESSOR made without the prior written consent of LESSOR shall be void and shall constitute a
material breach of this Lease. Neither this Lease nor any interest therein shall be assignable as to
the interest of LESSEE by operation of law.
8. INDEMNITIES
A. LESSEE, as a material part of the consideration to be rendered by
LESSOR under this Lease, hereby waives all claims against LESSOR for dariage to equipment
or other personal property, fixtures and facilities in, upon or about the Property and for injuries to
persons in or about the Property, from any cause arising at any time, except for claims arising out
of the negligent acts or omissions or willful misconduct of LESSOR or its agents arising from
Lessor's negligent performance or failure to perform any tern, covenant conditions of this
Lease. LESSEE agrees to indemnify LESSOR, 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 properly, losses, costs, penalties, obligations, errors, omissions or
liabilities (herein "claims or liabilities") that may be asserted or claimed by ally persons, firm or
entity arising out of or in connection with the negligent performance of the work, operations or
activities of LESSEE, its agents, employees, subcontractors or invitees, provided for herein, or
arising from the use of the Property by LESSEE or its employees and invitees, or arising from
the failure of LESSEE to keep the Property in good condition and repair, as herein provided, or
arising from the negligent acts or omissions of LESSEE hereunder, or arising from LESSEE's
negligent performance of or failure to perform any term, provision, covenant or condition of this
Lease, whether or not there is concurrent passive negligence on the part of the LESSOR, its
officers, agents or employees but excluding such claims or liabilities arising from the active
negligence or willful misconduct of the LESSOR, its officers, agents or employees, and in
connection therewith:
(1) LESSEE 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;
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(2) LESSEE will promptly pay any judgment rendered against the
LESSOR, 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 LESSEE hereunder; and LESSEE agrees to save and hold LESSOR, its officers,
agents and employees harmless therefrom;
(3) In the event LESSOR, its officers, agents or employees, is made a
party to any action or proceeding filed or prosecuted against LESSEE for such damages or other
claims arising out of or in connection with the negligent perfornance of or failure to perforn the
work, operation or activities of LESSEE hereunder, LESSEE agrees to pay to LESSOR, its
officers, agents or employees any and all costs and expenses incurred by LESSOR, its officers,
agents or employees in such action or proceeding, including, but not limited to, legal costs and
attorneys' fees.
9. INSURANCE
A. LESSEE shall procure and maintain the following policies of insurance
during the tern of this Lease:
(1) Personal Property Insurance. LESSEE, at its expense, shall
maintain fire and extended coverage insurance written on a per-occurrence basis on its fixtures,
equipment, personal property and facilities within the Property from loss or damage to the extent
of their firll replacement value.
(2) General Liability Insurance. During the entire term of this Lease,
LESSEE shall, at the LESSEE's sole cost and expense, but for the mutual benefit of LESSOR
and LESSEE, maintain commercial general liability insurance, insuring against claims for bodily
injury, death or property damage, including coverages for contractual liability, personal injury,
independent contractor, broadforn property damage, products and completed operations,
occurring in, upon or about the Property written on a per-occurrence basis in an amount not less
than a combined single limit of$ 1,000,000 for bodily injury, death, and property damage. The
general liability policy shall name the City of Palm Springs as an additional insured in
accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent
language. Alternatively, LESSEE may maintain the two million of reserves and excess coverage
and provide a certificate of self insurance for the equivalent amount of coverage.
(3) Workers' Compensation Insurance. LESSEE shall, at the
LESSEE's sole cost and expense, maintain a policy of workers' compensation insurance in an
amormt as will frilly comply with the laws of the State of California and which will include
$1,000,000 employer's liability.
(4) Business Automobile hisurance. A policy of business automobile
liability insurance written on a per occurrence basis with a single limit liability in the amount of
$1,000,000 bodily injury and property damage. Said policy shall include coverage for owned,
non-owned, leased and hired cars.
All of the above commercial policies of insurance shall be primary insurance and
shall name the City, its officers, employees and agents as additional insureds. The insurer shall
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waive all rights of subrogation and contribution it may have against the City, its officers,
employees and agents and their respective insurers. hi the event any of said policies of insurance
are canceled, the LESSEE shall, prior to the cancellation date, submit new evidence of insurance
in conformance with this Section 9 to the Contract Officer. No work or services under this
Agreement shall commence until the LESSEE has provided the City with Certificates of
Insurance or appropriate insurance binders evidencing the above insurance coverages and said
Certificates of Insurance or binders are approved by the City.
The LESSEE agrees that the provisions of this Section 9 shall not be construed as
limiting in any way the extent to which the LESSEE may be held responsible for the payment of
damages to any persons or property resulting from the LESSEE's activities or the activities of
any person or persons for which the LESSEE is otherwise responsible.
10. LESSEE DEFAULTS
A. The occurrence of any one or more of the following events shall constitute
an"Event of Default"hereunder by LESSEE:
(1) The failure by LESSEE to make any payment of rent or any other
payment required to be made by LESSEE hereunder, as and when due, where such failure shall
continue for a period of ten (10) days after written notice thereof is received by LESSEE from
LESSOR.
(2) The failure by LESSEE to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by LESSEE, other
than as specified in Paragraph 10.A.(1) above, where such failure shall continue for a period of
thirty (30) days after written notice thereof is received by LESSEE from LESSOR; provided,
however, that it shall not be deemed an Event of Default by LESSEE if such default is not
reasonably capable of being cured within said thirty (30)-day period and LESSEE shall
commence to cure such failure within said thirty (30)-day period and thereafter diligently
prosecute such cure to completion.
(3) The abandonment of the Property by LESSEE.
(4) The making by LESSEE of a general assignment for the benefit of
creditors; the filing by LESSEE of a voluntary petition in bankruptcy or the adjudication of
LESSEE as a bankrupt; the appointment of a receiver to take possession of all or substantially all
the assets of LESSEE located at the Property or of LESSEE's leasehold interest in the Property;
the filing by any creditor of LESSEE of an involuntary petition in bankruptcy which is not
dismissed within sixty (60) days after filing; or the attachment, execution or other judicial
seizure of all or substantially all of the assets of LESSEE or LESSEE's leasehold where such an
attachrrnent, execution or seizure is not discharged within sixty(60) days.
B. In the event of any such default or breach by LESSEE, LESSOR may at
any time thereafter, without farther notice or demand, rectify or cure such default, and any sums
expended by LESSOR for such purposes shall be paid by LESSEE to LESSOR upon demand
and as additional rental hereunder. In the event of any such default or breach by LESSEE,
(i) LESSOR shall have the right to continue the Lease in full force and effect and enforce all of
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its rights and remedies under this Lease, including the right to recover the rental as it becomes
due under this Lease, or (ii) LESSOR shall have the right at any time thereafter to elect to
terminate the Lease and LESSEE's right to possession thereunder. Upon such termination,
LESSOR shall have the right to recover from LESSEE:
(1) The worth at the time of award of the unpaid rental which had been
earned at the time of termination;
(2) 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 LESSEE proves could have been reasonably avoided;
(3) 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 LESSEE proves could be reasonably avoided; and
(4) Any other amount necessary to compensate: the LESSOR for all
the detriment proximately caused by LESSEE's 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 amount referred to in
subparagraphs (1) and (2) 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 (3) above shall be computed by discounting such amount at the discount rate of the
Federal Reserve Banc 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, 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 LESSOR may make to mitigate the damages caused by
LESSEE's breach of this Lease shall not constitute a waiver of LESSOR's right to recover
danages against LESSEE hereunder, nor shall anything herein contained affect LESSOR's right
to indemnification against LESSEE for any liability arising prior to the termination of this Lease
for personal injuries or property damage, and LESSEE hereby agrees to indemnify and hold
LESSOR harmless from any such injuries and damages, including all attorneys' fees and costs
incurred by LESSOR in defending any action brought against LESSOR for any recovery thereof,
and in enforcing the terms and provisions of this indemnification against LESSEE.
Notwithstanding any of the foregoing, the breach of this Lease by
LESSEE, or an abandonment of the Property by LESSEE, shall not constitute a termination of
this Lease, or of LESSEE's right of possession hereunder, unless and until LESSOR elects to do
so, and, Lentil such time, LESSOR 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
LESSEE hereunder as they become due. Failure of LESSOR to tenminate this Lease shall not
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prevent LESSOR from later terminating this Lease or constitute a waiver of LESSOR's right to
do so.
C. Acceptance of rental hereunder shall not be deemed a waiver of any
default or a waiver of any of LESSOR's remedies.
11. NOTICES
All notices hereunder must be in writing and, unless otherwise provided
herein, shall be deemed validly given if sent by certified mail, return receipt requested, addressed
as follows (or to any other mailing address which the party to be notified may designate to the
other party by such notice). Should LESSOR or LESSEE have a change of address, the other
party shall immediately be notified as provided in this paragraph of such change.
LESSEE: South Coast Air Quality Management District
21865 East Copley Drive
Diamond Bar, California 91765-4185
ATTN: Sylvia Oroz
LESSOR: City of Palm Springs
P. O. Box 2743
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
ATTN: City Manager
with a copy to:
ALESHIRE & WYNDER, LLP
18881 Von Kaman Avenue, Suite 400
Irvine, California 92612
ATTN: David J. Aleshire, Esq., City Attorney
12. HAZARDOUS SUBSTANCES
A. LESSOR represents, warrants and agrees:
(1) That, to the actual knowledge of, the Fire Chief, neither LESSOR
nor any third party has used, generated, stored or disposed of, or permitted the use, generation,
storage or disposal of, any Hazardous Material (as defined in Paragraph 12.13. below) on, under,
about or within the Property in violation of any law or regulation; and
That LESSOR will not, and will not permit any third party to, use, generate, store or dispose of
any Hazardous Material on, under, about or within the Property in violation of any law or
regulation.
(2) LESSEE shall not engage in any activity on or about the Property
that violates any Environmental Law and shall promptly, at LESSEE's sole cost and expense,
take all investigatory and/or remedial action required or ordered by any governmental agency,
LESSOR or Environmental Law for clean-up and removal of any contamination involving any
Hazardous Material created or caused directly or indirectly by LESSEE. The tern
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"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
Property. LESSEE shall provide all notices required pursuant to the Safe Drinking Safety Code
and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 P "se .
LESSEE shall provide prompt written notice to LESSOR of the existence of Hazardous
Substances on the Property known to LESSEE and all notices of violation of the Environmental
Laws received by LESSEE. LESSEE shall not bring any Hazardous Materials onto the Property
except for those contained in its back-up power batteries (lead-acid batteries) and common
materials used in telecommunications operations, e.g., cleaning solvents and compressed gas
cylinders used for servicing the instruments. LESSEE will treat, use, store and dispose of all
Hazardous Materials brought onto the Property by it in accordance with all federal, state and
local laws and regulations. LESSEE shall have the right to terminate this Lease if LESSEE
reasonably concludes from environmental investigation(s) (including, but not limited to, a Phase
I investigation) that a Hazardous Material is present on, about or around this Property; provided
that LESSEE must exercise its right of termination within three (3) months of the
commencement of this Lease unless such date is extended in writing by LESSEE and by
LESSOR.
B. LESSOR and LESSEE each agree to defend, indemnify and hold harmless
the other and the other's partners, affiliates, agents and employees against any and all losses,
liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any
breach of any representation, warranty or agreement contained in Paragraph 12.A. above. As
used in Paragraph 12.A. above, "Hazardous Material" shall mean petroleum or any petroleum
product, asbestos, any substance known by the State of California to cause cancer and/or
reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous,
toxic or dangerous in any applicable federal, state or local law or regulation.
13. MISCELLANEOUS PROVISIONS
A. LESSOR represents, covenants and warrants that LESSEE, upon paying
the rent and performing the covenants herein provided, shall peaceably and quietly have, hold
and enjoy the Property. LESSOR agrees that no other commercial antemia structure(s) will be
erected upon any portion of LESSOR's Property without LESSEE's prior written consent.
LESSOR will not construct or operate, or permit to be constructed or operated, on LESSOR's
Property any antenna structure or communications facility that interferes with LESSOR's use of
the Property.
B. LESSOR represents, covenants and warrants that LESSOR is seized of
good and sufficient title to and interest in the Property and has full authority to enter into and
execute this Lease. LESSOR further covenants that there are no undisclosed liens,judgments or
impediments of title on the Property that would affect this Lease which are not disclosed in the
preliminary title report obtained by LESSEE. Notwithstanding the foregoing, LESSEE
understands and acknowledges that LESSOR shall from time to time allow third parties to use
LESSOR's Property(excluding the Property).
C. It is agreed and understood that this Lease contains all agreements,
promises and understandings between LESSOR and LESSEE, and no verbal or oral agreements,
promises or tmderstandings shall or will be binding upon either LESSOR or LESSEE, and any
addition, variation or modification to this Lease shall be void and ineffective unless made in
writing and signed by the parties hereto.
D. This Lease and the perfonnance hereof shall be governed, interpreted,
construed and regulated by the laws of the State of California.
E. This Lease, and each and every covenant and condition herein, is intended
to benefit the Property and shall extend to and bind the heirs, personal representatives, successors
and assigns of the parties hereto.
F. At LESSOR's option, this Lease shall be subordinate to any mortgage by
LESSOR which, from time to time, may encumber all or any part of the Property or of the
easement, provided that every such mortgagee shall recognize (in writing and in a form
acceptable to LESSEE's counsel) the validity of this Lease in the event of a foreclosure of
LESSOR's interest and also LESSEE's right to remain in occupancy and have access to the
Property so long as LESSEE is not in default of this Lease. LESSEE shall execute whatever
instruments may reasonably be required to evidence this subordination.
G. The parties agree that all of the provisions hereof shall be construed as
both covenants and conditions, the sane as if the words importing such covenants and conditions
had been used in each separate paragraph.
H. The language of all of the provisions hereof shall be construed simply and
according to its fair meaning, and this Lease shall never be construed either for or against either
party.
I. If any portion of this Lease is declared by a court of competent jurisdiction
to be invalid or unenforceable, then such portion shall be deemed modified to the extent
necessary in such court's opinion to render such portion enforceable and, as so modified, such
portion and the balance of this Lease shall continue in full force and effect.
J. If either party institutes any action or proceeding in court to enforce any
provision(s) hereof, or any action for damages by reason of any alleged breach of any of the
provisions hereof, then the prevailing party in any such action or proceeding shall be entitled to
receive from the losing party such amount as the court may adjudge to be reasonable attorneys'
fees for the services rendered to the prevailing party, together with its other reasonable litigation
costs and expenses.
K. In addition to the other remedies provided for in this Lease, LESSOR and
LESSEE shall be entitled to immediate restraint by injunction of any violation of any of the
covenants, conditions or provisions herein contained.
7/40r-
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L. The captions of the sections in this Lease are for convenience of reference
only and shall not affect the interpretation of this Lease or limit or amplify any of its teens or
provisions.
M. Upon the completion of a survey of the Property by LESSEE as described
in Paragraph 2.A. above and upon the request of LESSEE, LESSOR may upon request by
LESSEE execute before a notary and deliver to LESSEE for recording a memorandum of lease
agreement.
N. In addition to all rentals herein reserved, LESSEE shall either pay directly
to the taxing authority or pay to LESSOR, at the election of LESSOR, annual real estate taxes
(including possessory interest taxes) and assessments levied upon the Property 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 no less than twenty (20) days prior to the delinquent date or, if LESSOR
rather than LESSEE receives the tax hill, thirty (30) days after receipt of a tax statement from
LESSOR, whichever is later. Even though the tern of this Lease has expired and LESSEE has
vacated the Property, when the final determination is made of LESSEE's share of such taxes and
assessments, LESSEE shall immediately pay to LESSOR the amount of any additional sum
owed.
O. During the term hereof, LESSEE shall pay, prior to delinquency, all taxes
assessed against and levied upon fixtures, furnishings, equipment and all other personal property
of LESSEE contained in the Property, and, when possible, LESSEE shall cause said fixtures,
furnishings, equipment and other personal property to he assessed and billed separately from the
real property of LESSOR.
P. LESSEE hereby acknowledges that late payment by LESSEE to LESSOR
of rental or other sums due hereunder will cause LESSOR to incur costs riot contemplated by
this Lease, the exact amount of which is extremely difficult to ascertain. Such costs include, but
are not limited to, processing and accounting charges. Accordingly, any payment of any sum to
be paid by LESSEE not paid within ten (10) days of its due date shall he subject to a five percent
(5%) late charge. LESSOR and LESSEE agree that this late charge represents a reasonable
estimate of such costs and expenses and is fair compensation to LESSOR for its loss suffered by
such late payment by LESSEE.
Q. Any sum to he paid pursuant to the terms of this Lease not paid when due
shall hear 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.
R. In the event of a partial or total destruction of the Property during the teen
of this Lease which requires repairs to the Property or LESSEE's fixtures, improvements,
facilities or personal property, LESSEE shall forthwith make said repairs pursuant to the terns
and conditions of this Lease. 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
-11- -?/4 /3
amnul or void this Lease. However, if during the last two (2) years of the term of this Lease the
Property is damaged to an extent in excess of twenty-five percent (25%) of the then replacement
cost, LESSEE may within thirty (30) days following the date such damage occurs terminate this
Lease by written notice to LESSOR; provided that, however, LESSEE shall surrender the
Property to LESSOR in the condition required by this Lease. If the Lease is not terminated
because of said casualty, LESSEE shall promptly rebuild. If LESSEE elects to terminate this
Lease, all rentals shall be prorated between LESSOR and LESSEE as of the date of such
destruction. In respect to any partial or total destruction (including any destruction necessary in
order to make repairs required by any such declaration of any authorized public authority) which
LESSEE is obligated to repair or may elect to repair under the terns of this section, LESSEE
waives any statutory right it may have to cancel this Lease as a result of such destruction.
S. In the event a condemnation or a transfer in lieu thereof results in a taking
of such a portion of the Property such that the Property may no longer be reasonably utilized as a
conummications facility, LESSEE may, upon written notice given within thirty (30) days after
such taking or transfer in lieu thereof, terminate this Lease. LESSEE shall not be entitled to
share in any portion of the award and LESSEE hereby expressly waives any right or claim to any
part thereof. LESSEE shall, however, have the right to claim and recover, only from the
condemning authority(but not from LESSOR), any amounts necessary to reimburse LESSEE for
the cost of removing its facilities,personal property and fixtures.
T. LESSEE shall permit LESSOR and its agents to enter into and upon the
Property at all reasonable times after reasonable notice to LESSEE for the purpose of inspecting
the same or for the purpose of posting notices of non-liability for alterations, additions or repairs.
LESSOR shall be permitted to do any of the above without any rebate of rent and without any
liability to LESSEE for any loss of occupation or quiet enjoyment of the Property thereby
occasioned.
U. 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
LESSEE agrees to submit to the personal jurisdiction of such court in the event of such litigation.
V. LESSEE herein covenants by and for itself, its heirs, executors,
administrators and assigns and all persons claiming under or through it, and this Lease is made
and accepted upon and subject to the following conditions: That there shall be no discrimination
against or segregation of any person or group of persons on account of race, sex, marital status,
color, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the Property herein leased, nor shall the LESSEE itself, or any person
claiming under or through it, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, sublessees, or subtenants in the Property.
I`l
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IN WITNESS WHEREOF, LESSOR and LESSEE have duly executed this Lease on the
day and year first above written.
LESSOR: LESSEE:
THE CITY OF PALM SPRINGS, SOUTH COAST AIR QUALITY
a Charter city and Municipal corporation MANAGE T DISTRICT, a public entity
By: By: 2-
City Manager Barry Waller ein, D.Env.
Its: Executive Officer
Attest:
City Clerk
APPROVED AS TO FORM: APPROVED AS TO FORM)
13AR13PA,BAIRD,DISTRICT COUNSEL
David J. Aleshire, I dui_
City Attorney Dale;_ L
-?Also*
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EXHIBIT"A-1"
LEGAL DESCRIPTION
This lease agreement applies to the thirteen foot by twenty foot interior space in the
northeast corner of the Palm Springs Fire Station 43 on 590 Racquet Club Road in the
City of Palm Springs. Two other spaces are also included in this lease. One is the use of
the exterior space in the parking lot directly to the north of the interior space for
installation and operation of particulate samplers. The other space is on the roof of the
fire station for mounting and operation of a wind tower not to exceed fifteen feet in
height above the roof. (See Exhibit"A-2" for a map of the property).
4
EXHIBIT "A-I"
Page 1 of 1
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EXHIBIT "A-\ �
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MINUTE ORDER NO,
APPROVING A GROUND LEASE
AGREEMENT WITH SOUTH COAST AIR
QUALITY MANAGEMENT DISTRICT.
I HEREBY CERTIFY that this Minute Order, approving a ground least agreement with
the South Coast Air Quality Management District for their use of space at Fire Station #3
(443), was adopted by the City Council of the City of Palm Springs, California, in a
meeting thereof held on the 3rd day of March, 2004.
BY: City Clerk