HomeMy WebLinkAbout2/18/2004 - STAFF REPORTS (3) DATE: February 18, 2004
TO: City Council
FROM: Acting Aviation Director
COACHELLA VALLEY TAXI OWNERS ASSOCIATION LEASE AGREEMENT
RECOMMENDATION:
That the City Council approve a Lease Agreement between the Coachella Valley Taxi Owners
Association and the City of Palm Springs for the rental of office space in the Airport's Ground
Transportation Building, subject to City Attorney review as to form
SUMMARY:
The requested action would allow the Coachella Valley Taxi Owners Association to occupy
office space at Palm Springs International Airport beginning March 1, 2004 at a monthly rental
of $281.41.
BACKGROUND:
The Coachella Valley Taxi Owners Association has expressed an interest in leasing office
space in the Airport's Ground Transportation Building. This building was designed as a lounge
and holding area for ground transportation operators and includes one office space which has
remained vacant since the building was constructed.
The term of the lease is for one year, beginning March 1, 2004, with three one-year options.
The monthly rental of$281.41 is based on approximately 210.4 square feet at$16.05/sf/annum
as established by the City's Comprehensive Fee Schedule.
The Airport Commission has reviewed this Lease Agreement and recommends City Council
approval. The lease agreement is attached and has recently been reviewed as to form by the
City Attorney's office and determined to be acceptable.
`Barry Gfiffith /, Lawrence D. Wedekind
Acting Qviatiefn'birector Landside Operations Manager
APPROVED:
City an Mager
Attachment:
1. Lease Agreement
2. Minute Order
REVIEWED BY DEPT.OF FINANCE
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LEASE
CITY OF PALM SPRINGS,
a municipal corporation
"Landlord"
and
COACHELLA VALLEY TAXI OWNERS ASSOCIATION
"Tenant"
LEASE
THIS LEASE ("Lease") is made and entered into this day of March, 2004, by and
between the CITY OF PALM SPRINGS, a municipal corporation ("Landlord"), and the Coachella
Valley Taxi Owners Association ("Tenant").
1. LEASE SUMMARY.
Certain fundamental lease provisions are presented in this Section and representthe
agreement of the parties hereto, subject to further definition and elaboration in the respective
referenced Sections and elsewhere in this Lease. In the event of any conflict between any
fundamental lease provision and the balance of this Lease, the latter shall control. References to
specific Sections are for convenience only and designate some of the Sections where references to
the particular fundamental lease provisions may appear.
1.1 Demised Premises. The"Demised Premises"shall refer to that certain real
property located in the County of Riverside, State of California, as more particularly described in
Exhibit"A" hereof and consisting of approximately 210.4 square feet of office space located in the
Airport's Ground Transportation Building.
1.2 Lease Commencement Date. The term of this Lease shall commence on
March 1, 2004 and shall terminate on February 28, 2005.
1.3 Extension Options. Three one (1) year options. (See Section 2.2).
1.4 Monthly Rental. Base Rental-$281.41 (See Section 3.1).
1.5 Security Deposit. $500.00.
1.6 Use of Demised Premises. Demised Premises may be utilized for such lawful
uses permitted under the Zoning Ordinances of the City applicable to the Demised Premises and the
Airport Rules and Regulations in conjunction with doing business as the Coachella Valley Taxi
Owners Association.
1.7 Not Applicable Sections. Sections 3.2 and 3.10.
1.8 Tenant's Address for Notices.
Sergio Santo, President
Coachella Valley Taxi Owners Association
Post Office Box 5451
Palm Springs, CA 92263
2. TERM.
2.1 Initial Term. The initial term of this Lease shall commence on the date
specified in Section 1.2("Commencement Date")and shall continue forthe period specified therein
unless earlier terminated as provided herein.
2.2 Option Term. Tenant is given the option(s)to extend the term on all of the
provisions contained in this Lease for the period specified in Section 1.3("extended term")following
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the expiration of the initial term or any other extended term properly exercised hereunder, by giving
notice of exercise of the option ("option notice")to Landlord at least one hundred twenty(120)days
but not more than six(6) months before the expiration of the initial term or any other extended term
properly exercised hereunder; provided that, if Tenant is in default on the date of giving the option
notice,the option notice shall be totally ineffective or, if Tenant is in default on the date the extended
term is to commence,the extended term shall not commence and this Lease shall expire atthe end
of the initial term or properly exercised extended term.
2.3 Time. Time is of the essence of this Lease.
2.4 Force Majeure. If either party hereto shall be delayed or prevented from the
performance of any act required hereunder by reason of acts of God, strikes, lockouts, labor
troubles, inability to procure materials, restrictive governmental laws or regulations or other cause
withoutfault and beyond the control of the party obligated(financial inability excepted),performance
of such act shall be excused for the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay, provided such party
provides the other party written notice of such event within ten (10) days of the commencement of
the delay;provided,however, nothing in this Section shall excuse Tenant from the prompt payment
of any rental or other charge required of Tenant hereunder except as may be expressly provided
elsewhere in this Lease.
2.5 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 fifty
percent (150%) of the last applicable Monthly Rental and upon terms and conditions as existed
during the last year of the term hereof.
3. RENTAL.
3.1 Monthly Rental. Tenant shall pay to Landlord, during the term of this Lease
from and after the Commencement Date as monthly rental ("Monthly Rental") for the Demised
Premises the sum specified in Section 1.4 hereof, which sun shall be paid in advance on the first
day of each calendar month. In the event the Commencement Date does not occur on the first day
of a calendar month,the Tenant shall pay the rental for the fractional month on the Commencement
Date on a per diem basis (calculated on a thirty-day month). 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 13.10 hereof.
3.2 Percentage Rental.
(a) In addition to the Monthly Rental hereinabove agreed to be paid by
Tenant, Tenant shall and will pay to Landlord at the time and in the manner herein specified as
additional rental(sometimes referred to herein as"percentage rental")a sum equal to the following:
(i) The product of the rate set forth in the Landlord's fee schedule
payable by Fixed Base Operators times the gross sales made in, upon, or from the Demised
Premises with respect to any commercial activity each month during the term hereof.
(b) Within fifteen(15)days after the end of each calendar month of the term
hereof,commencing with the fifteenth(15th)day of the month following the Commencement Date,
and ending with the fifteenth (15th) day of the month next succeeding thelast month of the Lease
term, Tenant shall furnish to Landlord a statement in writing, certified by Tenant to be correct,
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showing the total gross sales made in, upon, or from the Demised Premises duing the preceding
calendar month relating to such commercial activity(or fractional month at the beginning of the term
if the Commencement Date is other than the first day of a month),and shall accompany each such
statement with a payment to Landlord equal to said percentage of such total monthly gross sales
made in, upon, or from the Demised Premises during each calendar month.
(c) The term"gross sales"as used herein means the total gross receipts,
including the actual charges for all services performed by Tenant and fees charged by Tenant and
by anyone including any subtenant, licensee or concessionaire in,at,from,or arising out of the use
of the Demised Premises,whether wholesale or retail,whetherfor cash or credit,or otherwise,and
including the value of all consideration other than money received for any of the foregoing,without
reserve or deduction for inability or failure to collect, including but not limited to sales, leases and
services related to said commercial activity for which there is a Fixed Base Operator fee. Each
installment or credit sale shall be treated as a sale for the full price in the month during which such
sale is made,irrespective of whether or when Tenant receives payment therefor. Gross Sales shall
not include sales taxes, so-called luxury taxes, consumers excise taxes, gross receipts taxes and
other similartaxes now or hereafter imposed upon the sale of merchandise or services, but only if
collected separatelyfrom the selling price of merchandise or services and collected from customers.
(d) The Tenant shall keep atthe Demised Premises(and shall require any
permitted subtenantto keep at the Demised Premises)full,complete and proper books,records and
accounts of its daily gross sales, both for cash and on credit, at any time operated in the Demised
Premises. The Landlord and its agents and employees shall have the right at any and all times,
during regular business hours,to examine and inspect all of the books and records of the Tenant,
including any sales tax reports pertaining to the business of the Tenant conducted in, upon, or from
the Demised Premises,forthe purpose of investigating and verifying the accuracy of any statement
of gross sales and to cause an audit of the business of Tenant to be made by a certified public
accountant of Landlord's selection. If the statement of gross sales previously made to Landlord shall
be found to be inaccurate,then and in that event,there shall be an adjustment and one party shall
pay to the other on demand such sums as may be necessary to settle in full the accurate amount of
said percentage rental that should have been paid to Landlord for the period or periods covered by
such inaccurate statement or statements. If said audit shall disclose an inaccuracy of greater than
three percent(3%)error with respect to the amount of gross sales reported by Tenant for the period
of said report,then the Tenant shall immediately pay to Landlord the cost of such audit; otherwise,
the cost of such audit shall be paid by Landlord.
3.3 Cost of Living Adjustment. Upon notification by tenant that they wish to
exercise their option to extend the term of this agreement in accordance with sections 1.3 and 2.2,
the Monthly Rental shall be adjusted in proportion to changes in the Consumer Price Index except
that no adjustment shall exceed 25%. Such adjustment shall be made by multiplying the original
Monthly Rental by a fraction,the numeratorof which is the value of the Consumer Price Indexforthe
calendar month three(3)months preceding the calendar month for which such adjustment is to be
made and the denominator of which is the value of the Consumer Price Index for the same calendar
month immediately prior to Commencement Date. For example, if the adjustment is to occur
effective June 1, 1989, the index to be used for the numerator is the index for the month ofMarch
1989 and the index to be used forthe denominator is the indexforthe month of March preceding the
Commencement Date. However,in no event shall the rent be reduced below the Monthly Rental in
effect immediately preceding such adjustment. The "Consumer Price Index" to be used in such
calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles-
Anaheim-Riverside Metropolitan Area, published by the United States Departmentof Labor,Bureau
of Labor Statistics(1982-84 = 100). If both an official index and one or more unofficial indices are
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published, the official index shall be used. If said Consumer Price Index is no longer published at
the adjustment date, it shall be constructed by conversion tables included in such new index.
3.4 Additional Rental. For purposes of this Lease, all monetary obligations of
Tenant under this Lease, including, but not limited to, insurance premiums, property taxes,
maintenance expenses, late charges and utility costs shall be deemed to be additional rental.
3.5 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 Demised 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. (Tenant specifically acknowledges that
the interest granted under this Lease may be subject to possessory interest taxes.) Such amount
shall be paid on the date that is twenty(20)days priorto 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 Demised Premises,when the
final determination is made of Tenant's share of such taxes and assessments, Tenant shall
immediately pay to Landlord the amount of any additional sum owed.
3.6 Personal Property Taxes. During the term hereof Tenant shall pay prior to
delinquency all taxes assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Demised 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.
3.7 Utilities. Tenant shall pay before delinquency all charges for telephone
service used in, upon, or about the Demised Premises by Tenant during the term of this Lease.
3.8 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 difficultto 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.
3.9 Interest. Any sum to be paid pursuant to the terms of this Lease not paid
when due shall bear interest from and after the duedate 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.
3.10 Permit. Tenant shall continuously maintain in effect during the term hereof a
Commercial Aeronautical Business permit from the Airport.
4. USE OF THE PREMISES.
4.1 Permitted Use. The Landlord hereby leases to Tenant and Tenant hires from
Landlord the Demised Premises with appurtenances as defined herein, for the purpose of
conducting thereon only the use specified in Section 1.6 of this Lease and for no other use.
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4.2 Prohibited Uses. Tenant shall not sell or permitto be kept, used,displayed or
sold in or about the Demised Premises (a) pornographic or sexually explicit books, magazines,
literature, films or other printed material, sexual paraphernalia, or other material which would be
considered lewd,obscene or licentious,(b)any article which may be prohibited by standard forms of
fire insurance policies, or (c) any alcoholic beverages unless expressly permitted by Section 1.6
hereof. Tenant shall not use,or permit to be used,the Demised Premises or any part thereof for the
installation or on-premises use of any gaming machine or video or arcade game unless expressly
permitted by this Lease.
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 Demised 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 orwhich shall
hereinafter be in force. Tenant's violation of law shall constitute an incurable default under this
Lease. The judgment of any court of competent jurisdiction,or the admission of Tenant in any action
or proceeding against Tenant,whether Landlord be a party thereto or not,that Tenant has violated
any such order or statute in said use, shall be conclusive of that fact as between the Landlord and
Tenant.
Tenant shall not engage in any activity on or about the Demised Premises that
violates any Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all
investigatory and/or remedial action required or ordered by any governmental agency or
Environmental Law for clean-up and removal of any contamination involving any Hazardous Material
created or caused directly or indirectly by 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 Demised Premises,including,without limitation,
(i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"),42 U.S.C.Sections 9601 et seg.; (ii)the Resource Conservation and Recovery Act of
1976 ("RCRA"),42 U.S.C. Sections 6901 et seg.; (iii) California Health and Safety Code Sections
25100 et seg.; (iv)the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health
and Safety Code Section 25249.5 et seq.; (v) California Health and Safety Code Section 25359.7;
(vi)California Health and Safety Code Section 25915; (vii)the Federal Water Pollution Control Act,
33 U.S.C.Sections 1317 et seq.;(viii)California Water Code Section 1300 et seq.;and(ix)California
Civil Code Section 3479 et seq., as such laws are amended and the regulations and administrative
codes applicable thereto. The term"Hazardous Material"includes,without limitation,any material or
substance which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste",
"restrictive hazardous waste"or"hazardous substance"or considered a waste,condition of pollution
or nuisance under the Environmental Laws; (ii)petroleum or a petroleum product or fraction thereof;
(iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or
reproductive toxicity. It is the intent of the parties hereto to construe the terms"Hazardous Materials"
and "Environmental Laws" in their broadest sense. Tenant shall provide all notices required
pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and
Safety Code Section 25249.5 et seq. Tenant shall provide prompt written notice to Landlord of the
existence of Hazardous Substances on the premises and all notices of violation of the
Environmental Laws received by Tenant.
4.4 Non-Discrimination & FAA Required Clauses
(a) Tenant,in the operations to be conducted pursuant to the provisions of
this Lease and otherwise in the use orthe Airport,shall not discriminate against any person or class
of persons by reason of race,color,sex,creed or national origin as in any manner prohibited by Part
15 of the Federal Aviation regulations or any amendments thereto.
(b) Tenant shall furnish its accommodations and/or services on a fair,
equal and not unjustly discriminatory basis to all users thereof. It shall charge fair, equal and not
unjustly discriminatory prices for each unit or service; provided, however, that the tenant may be
allowed to make reasonable and non-discriminatory discounts,rebates orother similartypes of price
reductionsto volume purchasers in accordance with the other provisions of this Lease with regard to
discounts and rebates.
(c) The Tenant agrees to insert the anti-discrimination provisions
hereinabove enumerated in any agreement by which said Tenant grants a right or privilege to any
person,firm or corporation to render accommodations and/or services to the public on the Demised
Premises.
(d) Landlord also reserves the right,but shall not be obligated to Tenant,
to maintain and keep in repair the landing area of the Airport,as well as publicly-owned facilities of
the Airport, together with the right to direct and control the activities of the Tenant in this regard.
(e) Tenant hereby agrees to comply with the notification and review
requirements covered in Part 77 of the Federal Aviation regulations in the event any future structure
or building is planned or in the event of any planned modification or alteration of any present or
future building or structure situated on the Demised Premises.
(f) Landlord hereby reserves a right of flight for the passage of aircraft in
the airspace above the surface of the Demised Premises together with the right to create in said
airspace such noise as is or shall become inherent in the operation of aircraft operating on the
Airport.
(g) Tenant, by accepting the Lease, expressly agrees for itself, its
successors and assigns that it shall not erect nor permit the erection of any structure or object nor
permit the growth of any tree on the land leased hereunder above the mean sea level elevation of
five hundred (500) feet. In such an event, Landlord reserves the right to enter upon the Demised
Premises and cause the abatement of the interference or hazard at the expense of the Tenant.
(h) Tenant, by accepting this Lease, expressly agrees for itself, its
successors and assigns that it shall not use the Demised Premises in any manner which might
interfere with the landing and taking off of aircraft from on or off the Airport or otherwise create a
hazard. In such an event, Landlord reserves the right to enter upon the Demised Premises and
cause the abatement of the interference or hazard at the expense of the Tenant.
(i) This agreement and all the provisions hereof shall be subject to
whatever rightthe United States Government now has or in the future may have or acquire affecting
the control,operation,regulation or commandeering of the Airport orthe exclusive or non-exclusive
use of the Airport by the United States during the time of war or national emergency.
Q) Operations for Benefit of Public. Tenant agrees to operate the
Demised premises for the use and benefit of the public, to make available all Tenant's airport
facilitiesto the public,without discrimination on the grounds of sex, race,color or national origin and
to refrain from imposing or levying excessive,discriminatory or otherwise unreasonable charges or
fees for any use of its facilities or otherwise unreasonable charges orfees for any use of its facilities
for services. Nothing herein contained shall be construed to grant or authorize the granting of an
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exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958, as amended.
Other Tenants or aircraft shall have the right to cross over taxiway/ramp areas of the Leasehold.
4.5 Signs. Tenant shall not place or permit to be placed any sign that is not in
compliance with the sign ordinance of the Landlord upon the exterior or in the windows of the
Demised 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 Tenant's approval
and without any liabilityto Tenant.
4.6 Public Facilities, Ingress Egress and Quiet Eniovment Landlord agrees that
Tenant, upon payment of the rental hereunder and performing the covenants of the Lease, may
quietly have, hold and enjoy the Demised Premises during the term of the Lease, and that Tenant
shall have the non-exclusive right to use, in commonwith others,the public facilities at the Airport
and Tenant shall have a reasonable right of ingress to and egress from the Demised Premises and
the public facilities for its employees, visitors and customers.
4.7 Rules and Regulations. Tenant shall faithfully observe and comply with the
rules and regulations that Landlord shall from time to time promulgate and/or modify. 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 nonperformance of any said rules and regulations by any other tenants or
occupants. The Rules and Regulations shall apply and be enforced as to all tenants in the Demised
Premises on a uniform basis.
5. ALTERATIONS AND REPAIRS
5.1 Improvements Alterations and Fixtures. Tenant shall not make or sufferto be
made, any alterations or improvements to the Demised Premises, or any part thereof, without the
prior written consent of Landlord, and any alterations or improvements to the Demised Premises,
except movable furniture, and trade fixtures,shall become at once a part of the realty and shall at
the expiration or earlier termination of this Lease belong to Landlord free and clear of any liens or
encumbrances. Tenant shall not in any event make any changes to the exterior of the Demised
Premises, if any. Any such alterations or improvements shall be in conformance with the
requirement of all municipal, state, federal, and other governmental authorities, including
requirements pertaining to the health, welfare or safety of employees of the public and in
conformance with reasonable rules and regulations of Landlord. Landlord may require that any such
alterations or improvements be removed prior to the expiration of the term hereof. Any removal of
alterations or improvements or furniture and trade fixture shall be at Tenant's expense and
accomplished in a good and workmanlike manner. Any damage occasioned by such removal shall
be repaired at Tenant's expense so that the Demised Premises can surrendered in a good, clean
and sanitary condition as required by Section 5.2 hereof. Any and all fixtures, improvements and
appurtenances installed by Tenant shall conform with the requirements of all municipal, state,
federal, and governmental authorities including requirements pertaining to the health, welfare, or
safety of employees or the public.
5.2 Maintenance and Repair Tenant shall, subject to Landlord's obligations
hereinafter provided, at all times during the term hereof, and at Tenant's sole cost and expense,
keep, maintain and repair the Demised premises and other improvements within the Demised
Premises in good and sanitary order,condition,and repair(except as hereinafter provided)including
without limitation,the maintenance and repair of any store front,doors,window casements,glazing,
heating and air conditioning system, plumbing, pipes, electrical wiring and conduits. Tenant shall
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also at its sole cost and expense be responsible for any alterations or improvements to the Demised
Premises necessitated as a result of the requirement of any municipal, state or federal authority.
Tenant hereby waives all rightto make repairs at the expense of the State of California to make said
repairs. By entering into the Demised Premises, Tenant shall be deemed to have accepted the
Demised premises as being in good and sanitary order,condition and repair,and Tenant agrees on
the last day of said term or sooner termination of this Lease to surrenderthe Demised 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. Tenant shall keep the Demised 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.
5.4 Construction Obligations. None.
5.5 Landlord's Reserved Rights.
(a) Airport Development and Safety. Landlord reserves the right to further
develop or improve the aircraft operating area of the Airport as it sees fit, except that portion of the
Airport comprising of the Demised Premises, and Landlord reserves the right to take any action it
considers necessary to protectthe aerial approaches of the Airport against obstruction,togetherwith
the rightto prevent Tenant from erecting or permittingto be erected any building or other structure of
the Demised premises which, in the opinion of Landlord,would limitthe usefulness of the Airport or
constitute a hazard to aircraft.
(b) Lease to United States. During the time of war or national emergency,
Landlord shall have the right to lease the landing area or any part thereof to the United States
Government for military or naval use, and, if such lease is executed, the provisions of the Lease
insofar as they are inconsistent with the provisions of the Lease to the Government shall be
suspended and, in that event, a just and proportionate part of the rent hereunder shall be abated,
and the period of such closure shall be added to the term of this Lease so as to extend and postpone
the expiration thereof unless the Tenant otherwise elects to terminate the Lease.
6. INSURANCE AND INDEMNIFICATION.
6.1 Insurance Provided by Tenant.
a. Food Preparation.Tenant,if involved in food preparation and sales as
a cafe, restaurant,or similar use, and/or food takeout service,shall install at Tenant's expense any
fire protective systems in grill,deep fry, and cooking areas which are required by city, county, and
state fire ordinances, and such system when installed shall qualify for full fire protective credits
allowed by the fire insurance rating and regulatory body in whose jurisdiction the Demised Premises
are located.
b. 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 Demised Premises from loss
or damage to the extent of their full replacement value and shall provide plate glass coverage.
(c) Tenant to Provide Liability Insurance. During the entire term of this
Lease, the Tenant shall, at the Tenant's sole cost and expense, but for the mutual benefit of
Landlord and Tenant, maintain comprehensive general liability insurance insuring against claims for
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bodily injury,death or property damage occurring in, upon or about the Demised Premises and on
any sidewalks directly adjacent to the Demised Premises written on a per occurrence basis in an
amount not less than either(i)a combined single limit of ONE MILLION DOLLARS($1,000,000.00)
for bodily injury, death, and property damage or (ii) bodily injury limits of$250,000.00 per person,
$500,000.00 per occurrence and $500,000.00 products and completed operations and property
damage limits of$100,000.00 per occurrence and$250,000.00 in the aggregate; provided,however,
if Landlord so elects Landlord may provide such insurance and, in such event,Tenant agrees to pay
its pro rata share of the cost of said insurance on the same basis as provided in Section 6.1 above.
(d) Tenant to Provide Worker's Compensation Insurance. Tenant shall,at
the Tenant's sole cost and expense, maintain a policy of worker's compensation insurance in an
amount as will fully comply with the laws of the State of California and which shall indemnify,insure
and provide legal defense for both the Tenant and the Landlord against any loss, claim or damage
arising from any injuries or occupational diseases occurring to any worker employed by or any
persons retained by the Tenant in the course of conducting Tenant's business in the Demised
Premises.
(e) General Provisions Applicable to Tenant's Insurance. All of the
policies of insurance required to be procured by Tenant pursuant to this Section 6.1 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 canceled 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 Demised 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 Demised
Premises are located and rated A:VII or better by Best's Insurance Guide. In the event the Risk
Manager of Landlord ("Risk Manager") determines that (i) the Tenant's activities in the Demised
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 thatthe 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 rightto appeal a determination of increased coverage
by the Risk Managerto the City Council of Landlord within ten(10)days of receipt of notice from the
Risk Manager. Landlord and Tenant hereby waive any rights each may have against the other on
account of any loss or damage occasioned by property damage to the Demised Premises, its
contents,or Tenant's trade fixtures,equipment,personal property or inventory arising from any risk
generally covered by insurance against the perils of fire,extended coverage,vandalism,malicious
mischief,theft,sprinkler damage, and earthquake sprinkler leakage. Each of the parties,on behalf
of their respective insurance companies insuring such property of either 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.
6.2 Tenant to Provide Fire and Extended Coverage Insurance. Tenant, at its
expense, shall maintain fire and extended coverage insurance throughout the term of this Lease
written on a per occurrence basis on the Demised Premises, its trade fixtures,equipment,personal
property and inventory within the Demised Premises from loss or damage to the extent of the full
replacement value.
-9- ?,Ou%\
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 Demised Premises and for injuries to persons in or
about the Demised Premises,from any cause arising at any time. Tenant agrees to indemnify the
Landlord,its officers,agents and employees against,and will hold and save them and each of them
harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs,
penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be
asserted or claimed by any person,firm or entity arising out of or in connection with(i)the negligent
performance of the work,operations or activities of Tenant, its agents, employees,subcontractors,
or invitees, provided for herein, or(ii)arising from the use of the Demised Premises or the parking
and common areas by Tenant or its employees and customers, (iii) or arising from the failure of
Tenant to keep the Demised Premises in good condition and repair, as herein provided, or (iv)
arising from the negligent acts or omissions of Tenant hereunder, or (v) 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. ABANDONMENT AND SURRENDER.
7.1 Abandonment. Tenant shall not vacate or abandon the Demised Premises at
any time during the term of this Lease; and if Tenant shall abandon, vacate or surrender the
Demised Premises or be dispossessed by process of law, or otherwise, any personal property
belonging to Tenant and left on the Demised Premises shall be deemed to be abandoned, at the
option of Landlord, except such property as may be mortgaged to Landlord.
7.2 Surrender of Lease. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of
Landlord,terminate all or any existing subleases or subtenancies,or may,at the option of Landlord,
operate as an assignment to it of any or all of such subleases or subtenancies.
8. DAMAGE AND DESTRUCTION OF PREMISES.
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In the event of(a)partial or total destruction of the Demised Premises during the term
of this Lease which requires repairs to the Demised Premises,or(b)the Demised Premises being
declared unsafe or unfit for occupancy by any authorized public authority for any reason, which
declaration requires repairs to the Demised Premises,Tenant shall forthwith make said repairs. No
such damage or destruction(including any destruction necessary in order to make repairs required
by any declaration made by any public authority)shall in any way annul or void this Lease. Tenant
shall promptly clean and remove all debris resulting from said damage or destruction. Tenant shall
take preliminary steps toward restoring the improvements with thirty(30) days of the casualty and
such improvements shall be restored within a reasonable time thereafter. The Demised Premises
shall be restored to the condition they existed immediately before said casualty.
9. ASSIGNMENT AND SUBLETTING.
Tenant shall not assign this Lease or sublet the Demised 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 transferto 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.Any such
assignment or subletting shall be subject to all of the terms and conditions of this Lease and
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 13.2 hereafter. Consent by Landlord to one
assignment,subletting,occupation or use by another person shall not be deemed to be a consent to
any subsequent assignment, subletting,occupation or use by another person. Any assignment or
subletting without the prior written consent of Landlord shall be void, shall constitute a material
breach of this Lease, and shall, at the option of Landlord,terminate this Lease. Neither this Lease
nor any interest therein shall be assignable as to the interest of Tenant by operation of law.
Landlord shall be under no obligation to consider a request for Landlord's consentto
an assignment until Tenant shall have submitted in writing to Landlord a request for Landlord's
consent to such assignment together with audited financial statements of the proposed assignee,a
history of the proposed assignee's business experience and such other information as required by
Landlord the criteria for assignment asset forth herein are met. 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 rightto condition its approval to an assignment
or subletting on the increase of Monthly Rent to the fair market rental value.
10. ENCUMBRANCE.
(a) This Lease, or any right to or interest in, or any of the improvements on the
Demised premises, may be encumbered with the written approval of Landlord. No such
encumbrance or addition thereto or extension thereof shall be valid without said approval. Any such
approved encumbrance shall be subject to the covenants,conditions and restrictions set forth herein
and to all rights of Landlord.
(b) Any encumbrance must be confined to the leasehold interest of Tenant or the
sub-leasehold interest of a subtenant, and shall not affect in any way the landlord's interest in the
land. The encumbrance shall provide that the proceeds from fire or extended coverage insurance
shall be used for the repair or rebuilding of the leasehold improvements and not to repay any part of
the outstanding mortgage. Tenant agrees to furnish, as requested, any financial statements or
analysis pertinent to the encumbrance that Landlord may deem necessary to justify the amount,
purpose and terms of said encumbrance. /�
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(c) In the event of default by the Tenant of the terms of an approved
encumbrance,the encumbrancer may exercise any rights provided in such approved encumbrance
provided that, before any sale of the leasehold estate,whether by power of sale or foreclosure,the
encumbrancer shall give to Landlord notice of the same character as is required to be given to
Tenant by such encumbrancer pursuant to the loan documents and/or the laws of the State of
California and Landlord shall be given an additional thirty(30)days in which to cure the default after
the time for tenant to cure has expired.
(d) If any sale under the approved encumbrance occurs, whether by power of
sale or foreclosure,and the purchaser at such sale is the encumbrancer,the encumbrancer may sell
and assign the Lease without any further consent of Landlord provided that the assignee shall agree
in such assumption by the assignee,the encumbrancer shall be released from all future obligations
of the Tenant under the Lease. If a sale under the approved encumbrance occurs, and the
purchaser is a party other than the encumbrancer, said purchaser, as successor in interest to the
Tenant,shall be bound by all the terms and conditions of the Lease and the purchaser shall assume
in writing the obligations of Tenant hereunder.
(e) If notice of such sale shall be given and the defaults or any of them upon
which such notice of sale is based shall then continue, Landlord shall have the right to correct such
defaults at any time prior to the date of sale or foreclosure, and to terminate such leasehold upon
paying to the encumbrancer the balance of the encumbrance as hereinafter defined.
(f) "Balance of encumbrance" shall mean the amount of principal remaining
unpaid on a note secured by a trust deed or mortgage of an interest plus accrued and past due
interestthereon and expenses incurred by the lender in connection with foreclosure including by not
limited to,fire insurance premiums,title insurance expenses, recording fees, appraisal fees, credit
reports and any tax reporting services and additional expenditures paid by the lender on additions,
betterments and rehabilitations of improvements on the property encumbered pursuant to plans
approved by landlord, which consent may not be unreasonably withheld, and other expenses
necessary to place the improvements in marketable condition,such adjusted principal to be paid in
case or,at the option of Landlord,amortized over the term and in accordance with the schedule set
forth in said note, the interest rate on the unpaid balance thereto to be as set forth in said note.
(g) Landlord agrees to provide encumbrancer written notice of any default by
Tenant under this lease and an opportunity to cure at the time notice of such default is provided to
Tenant and give encumbrancer thirty(30)days to cure a monetary default or forty-five(45)days to
cure a non-monetary default cannot be cured within such period of forty-five days, encumbrancer
shall have a reasonable time to cure such default provided that encumbrancer commences to cure
within said forty-five days and diligently prosecutes the cure to completion. Such period of time shall
include the time to complete a foreclosure action if encumbrancer needs to gain possession of the
Demise Premises to cure said default by Tenant.
11. DEFAULT AND REMEDIES.
11.1 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
hereunderto or on behalf of Landlord more than three(3)days afterwritten notice from Landlord to
Tenant that Tenant has failed to pay rent when due; (b) the failure to perform any of Tenant's
agreements or obligations hereunder(exclusive of a default in the payment of money)where such
default shall continue for a period of thirty (30) days after written notice thereof from Landlord to 4
Tenant which notice shall be deemed to be the statutory notice so long as such notice complies with
statutory requirements;(c)the vacation or abandonment of the Demised Premises by Tenant; (d)the
making by Tenant of a general assignment for the benefit of creditors; (e) the filing by Tenant ofa
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 Demised
Premises or of Tenant's leasehold interest in the Demised 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 otherjudicial seizure of all or substantially all of the assets
of Tenant or Tenant's leasehold where such an attachment,execution or seizure is not discharged
within sixty (60) days. Any repetitive failure by Tenant to perform its agreements and obligations
hereunder,though intermittently cured, shall be deemed an incurable default. Two (2) breaches of
the same covenant within a sixty(60)day period, a notice having been given pursuant to (a) or(b)
above for the first breach, or three(3)of the same or different breaches at any time during the term
of this Lease for which notices pursuant to (a)or(b)above were given for the firsttwo(2)breaches
shall conclusively be deemed to be an incurable repetitive failure by Tenantto perform its obligations
hereunder.
In the event of any such default or breach by Tenant, Landlord may at any time
thereafter,without further notice or demand, rectify or cure such default,and any sums expended by
Landlord for such purposes shall be paid by Tenant to Landlord upon demand and as additional
rental hereunder. In the event of any such default or breach by Tenant, Landlord shall have the right
(i)to continue the lease in full force and effect and enforce all of its rights and remedies under this
Lease, including the right to recover the rental as it becomes due under this Lease, or(ii)Landlord
shall have the right at any time thereafter to elect to terminate the Lease and Tenant's right to
possession thereunder. Upon such termination, Landlord shall have the right to recover from
Tenant:
(a) The worth at the time of award of the unpaid rental which had been
earned at the time of termination;
(b) 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;
(c) The worth at the time of award of the amount by which the unpaid
rental for the balance of the term after the time of award exceeds the amount of such rental loss that
the Tenant proves could be reasonably avoided; and
(d) Any other amount necessary to compensate the Landlord for all the
detriment proximately caused by Tenant's failureto perform its obligations underthe lease orwhich
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%)overthe prime rate then being
charged by Bank of America, N.A. but in no event greaterthan 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 (1%), but in no event greater than ten percent
(10%).
As used herein"rental"shall include the Monthly Rental, percentage rental equal to
the average percentage rental paid or payable by Tenant for the last twelve (12) months or such
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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 Tenant's
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'sfees and costs incurred by Landlord in defending
any action brought against Landlord for any recovery thereof, and in enforcing the terms and
provisions of this indemnification against Tenant.
Notwithstanding any of the foregoing, the breach of this Lease by Tenant, or an
abandonment of the Demised Premises by Tenant, shall not constitute a termination of this Lease,
or of Tenant's right of possession hereunder, unless and until Landlord elects to do so, and until
such time Landlord shall have the right to enforce all of its rights and remedies under this Lease,
including the right to recover rent,and all other payments to be made by Tenant hereunder,as they
become due. Failure of Landlord to terminate this Lease shall not prevent Landlord from later
terminating this Lease or constitute a waiver of Landlord's right to do so.
11.2 No Waiver. Acceptance of rental hereunder shall not be deemed a waiver of
any default or a waiver of any of Landlord's remedies.
11.3 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 afterwritten 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.
12. CONDEMNATION.
In the event a condemnation or a transfer in lieu thereof results in a taking of any
portion of the Demised 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 Demised 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
Demised Premises.
_14_
13. MISCELLANEOUS.
13.1 Entry and Inspection. Tenant shall permit Landlord and his agents to enter
into and upon the Demised Premises at all reasonable times for the purpose of inspecting the same
orforthe purpose of maintaining the Demised Premises as required by the terms of this Lease orfor
the purpose of posting notices of non-liabilityfor alterations,additions or repairs,or for the purpose
of placing upon the property in which the Demised 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 Demised 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
Demised 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 Demised Premises and
exhibit same to prospective tenants.
13.2 Estoppel Certificate. If, as a result of a proposed sale, assignment, or
hypothecation of the Demised 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
deliversuch 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.
13.3 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.
13.4 Partial lnvalidity. If any term,covenant, condition or provision of this Lease is
held by a court of competent jurisdiction to be invalid,void, or unenforceable,the remainder of the
provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or
invalidated thereof.
13.5 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.
13.6 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 any kind or
nature not specifically set forth herein have been made by Landlord or its agents or representatives.
13.7 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 deliverthis 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_15_ ;Lwkw■
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.
13.8 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 anyway 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.
13.9 Nondiscrimination. Tenant herein covenants by and for itself, its heirs,
executors,administrators and assigns and all persons claiming underorthrough 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 Demised 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 Demised Premises.
13.10 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.
13.11 Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party shall impair such right or remedy or be construed as a waiver. A party's consent to
or approval of any act by the other party requiring the party's consent or approval shall not be
deemed to waive or render unnecessary the other party's consent to or approval of any subsequent
act. Any waiver by either party of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of this Lease.
13.12 Exhibits and Addenda. The Exhibits and Addenda attached to this Lease are
made a part hereof as if fully set forth herein. In the event of a conflict between the terms and
provisions of an Addenda and the terms and provisions of this Lease, the termsand provisions of
the Addenda shall prevail.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the
date first written above.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By:
City Clerk City Manager
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02/05/2004 17' 08 FAX 949 222 1180 ALESHIRE & WVNDER, LLP Z 002/002
IN WITNESS WHEREOF,the parties have duly executed this Lease togetherwith 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 municipal
corporation
By: By;
City Clerk City Manager
"LANDLORD"
REVIEWED AND APPROVED
ALESMIREa& WYNDER1, LLP
0 By: By:
David J. Aleshire, Esq.
City Attorney Its:
By:
Its:
"TENANT"
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APPROVED AS TO FORM:
By:
City Attorney
CONTRACTOR: Check one:_Individual Partnership_Corporation
Corporations require two notarized signatures: One from each of the following: A. Chairman of Board,President,or any Vice
President:AND B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer).
By: By:
Signature (notarized) Signature(notarized)
Name: Name:
Title: Title:
State of � State of
l
County of ss County of Ls
On___before me, On before me,
personally appeared personally appeared
personally known to me (or proved to me on the basis of personally known to me (or proved to me on the basis of
satisfactory evidence)to be the person(s)whose name(s)is/are satisfactory evidence)to be the person(s)whose name(s)is/are
subscribed to the within instrument and acknowledged to me that subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s),or the entity upon behalf of which the instrument the person(s),or the entity upon behalf of which the
person(s)acted,executed the instrument. person(s)acted,executed the instrument.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary Seal: Notary Seal:
EXHIBIT"A"
DEMISED PREMISES
Demised Premises consists of approximately
210.4 square feet of office space (1 TF X 12'1")
in the Airport's Ground Transportation Building
represented by the shaded area below.
R151ROOM
R15IR00A
Off ICI AREA
LOUNGE
VENDING
BILLIARD AREA
EXHIBIT"A" �rJ►, •
TO LEASE
EXHIBIT"B"
ESTOPPEL CERTIFICATE
Tenant:
Landlord: CITY OF PALM SPRINGS, a
municipal corporation
Date of Lease:
Demised Premises:
To:
The undersigned hereby certifies as follows:
1. The undersigned is the tenant("Tenant")under the above-referenced lease("Lease")
covering the above-referenced premises ("Demised Premises").
2. The Lease constitutes the entire agreement between landlord under the Lease
("Landlord") and Tenant with respect to the Demised 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 Demised 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 Demised 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 Tenant's knowledge, no claim,controversy,
dispute, quarrel or disagreement exists between Tenant and Landlord.
5. Tenant is currently obligated to pay Monthly Rent in installments of$
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(_%)and percentage rent has been paid through 19_. To the best of
Tenant's knowledge, no,other rent has been paid in advance and Tenant has no claim or defense
EXHIBIT"B"
TO LEASE
2 ow ��
against Landlord under the Lease and is asserting no offsets or credits against either the rent or
Landlord. Tenant has no claim against Landlord for any security or other deposits except
$ which was paid pursuant to the Lease.
6. Tenant has no option or preferential rightto lease or occupy additional space within
the Property of which the Demised Premises area part. Tenant has no option or preferential right to
purchase all of any part of the Demised Premises nor any right or interest with respect to the
Demised 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 othertype 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:
EXHIBIT"B"
TO LEASE � ^�
�' o
EXHIBIT"C"
RULES AND REGULATIONS
1. All loading and unloading of goods shall be done only at the times, in the areas and
through the entrances reasonably designated for such purposes by Landlord.
2. The delivery or shipping of merchandise, supplies and fixtures to and from the
Demised Premises shall be subject to such rules and regulations as in the reasonable judgment of
Landlord are necessary for the proper operation of the Demised Premises or of the Property
generally.
3. All of Tenant's refuse and rubbish shall be removed to central trash bins located in the
Property, at Tenant's sole cost and expense.
4. No radio or television or other similar device audible outside the Demised Premises
shall be installed without obtaining in each instance the written consent of Landlord. No aerial shall
be erected on the roof or exterior walls of the Demised Premises or on the grounds of the Property
without first obtaining in each instance the written consent of Landlord 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.
5. No loudspeakers,televisions,phonographs,radios or otherdevices shall be used in a
manner so as to be heard or seen outside of the Demised Premises without first obtaining in each
instance written consent of Landlord.
6. The outside sidewalks and loading areas immediately adjoining the Demised
Premises shall be kept clean and free from dirt and rubbish by Tenant to the reasonable satisfaction
of Landlord, 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.
7. Tenant shall not burn any trash or garbage of any kind in or about the Demised
Premises or the Property generally.
8. Tenant will not allow animals,except seeing-eye dogs,in,about or upon the Demised
Premises.
9. Tenant shall not use, and shall not allow anyone else to use,the Demised Premises
as a habitation. Such prohibition shall include, without limitation, sleeping, eating or bathing.
10. Tenant shall not place any rubbish or other matter outside any building within the
Property, except in such containers as are authorized from time to tine by Landlord.
EXHIBIT"C"
TO LEASE �]
� av
MINUTE ORDER NO.
APPROVING A LEASE AGREEMENT WITH THE
COACHELLA VALLEY TAXI ASSOCIATION, IN A
FORM ACCEPTABLE TO THE CITY ATTORNEY,
FOR THE LEASE OF OFFICE SPACE IN THE
GROUND TRANSPORTATION BUILDING AT PALM
SPRINGS INTERNATIONAL AIRPORT.
I HEREBY CERTIFY that this Minute Order, approving a lease agreement with
the Coachella Valley Taxi Association, in a form acceptable to the City
Attorney, for the lease of office space in the Ground Transportation Building at
Palm Springs International Airport, was adopted by the City Council of the City
of Palm Springs, California, in a meeting thereof held on February 18, 2004.
PATRICIA SANDERS
City Clerk