HomeMy WebLinkAbout9/17/2003 - STAFF REPORTS (24) DATE: September 9, 2003
TO: Community Redevelopment Agency
FROM:
PROVIDE DIRECTION TO CITY ATTORNEY FINALIZING THE RESTATED AND
AMENDED THEATER LEASE AGREEMENT
RECOMMENDATION:
Provide clarification as to whether council intended to require removal of
any nonconforming signs by a date certain or whether council wished to
have no reference to a date as requested in the letter from counsel for the
Partnership of Performing Arts.
SUMMARY:
On July 30, 2003, the City Council and Redevelopment Agency Board
approved the Restated and Amended Theater Lease Agreement with the
Partnership for the Performing Arts subject to the City Attorney finalizing
the document and approving it as to form. One of the items that had been
negotiated immediately prior to that meeting was the concept of inserting
into the document a requirement of a date by which any existing signs that
are not in conformance with current City Code requirements would come
into conformance. The City Attomey's office understood that the
inclusion of that date was to clarify in the document that, in addition to the
new signs being completed by that date, there was also a requirement that
if for some reason the new signs weren't completed and approved by that
date that the existing signs would be removed by that same date. Thus, in
drafting the finalized agreement, language had been included as follows:
"The excepted signs shall come into conformance with the
municipal code either by code revision or by replacement
signs such as is proposed below in B on or before
December 31, 2003." and
"The Portable Sign shall continue to be used and located in
its present location and configuration until the earlier of the
installation of the New Sign or December 31, 2003."
The Partnership of Performing Arts received its execution copy including
the above language but is unwilling to sign it in that form with the date.
As may be seen in the attached letter they are ready to sign if the date is
removed. The purpose of bringing this item back for council clarification
is to simply give direction to the City Attorney in following through on the
Council's prior action to finalize the form of agreement with guidance as
to whether Council wishes the agreement to stand as the City Attorney's
office understood it, with the requirement in it that the signs be removed if
the new signs aren't in place by that certain date, or whether the Council
had actually intended to have no deadline to remove the illegal signs. The
26153.1 '+�
only reason there is a necessity for Council clarification on this item is that
the City Attorney's office has consistently recommended throughout the
negotiation period that there would be a date certain by which any or
illegal signsYat
d fron the property, so this office did not believe it
could remori mu t without direction from council.
CA
JERRI A. OGB RN
Direct r, Downt wn(Dev opment enter
JOH RA OND
Direr or Communit3j Economic Development
APPROVED:
�a
City ManwV
ATTACHMENTS:
1. Letter Request
2. Lease with requested revisions (at pages 13 & 14)
261531 1-� ��
Si OVAK BARON`X.ENrnEY up
A T T O R N E Y S A T L A W
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DAVID L.BARON 1800 E.TAHQUITZ CANYON WAY, PALM SPRINGS, CA 92262
MARC I:EMPLV PHONE(760)322-2275 FAX(760)322-2107
JASON D.DA➢AR➢IN➢R
PE rca M.Bna INLNICI I ORANGE COUNTY OFFICE
MARY E.G Ls I Rnr 650 TOWN CENTER DRIVE,
CI A uuu L.OALI AGI ILR SUITE 1400
SWAN E WIn o I Y COSTA MESA,CALIFORNIA 92626
NIARRw EDDAIIiIN PHONE(714)435-9591
VINCINI R.W[III AK171N FAX(714)850-9011
J01.1.D.PL I1,MON
RIC[Wen A.UMBINI IALR
OI COIINSLL
LNCIEN A.VAN HOLLE
MYRON MEYERS,P.C.
H.NEALWELLS,III
September 3, 2003
BY FACSIMILE.
E-MAIL AND REGULAR
U.S. MAIL
Dawn C. Honeywell, Esq.
Aleshire & Wynder, LLP
Tower 17
1881 Von Karman Avenue, Suite 400
Irvine, California 92612
Re: Proposed Restated and Amended Theater Lease Agreement
Between The Community Redevelopment Agency of the City of
Palm Springs and The Partnership For the Performing Arts, L.P.
(The "Lease")
Dear Ms. Honeywell:
As you are aware this office represents The Partnership For the Performing Arts, L.P.,
(hereafter the "Lessee") the proposed Lessee under the Lease.
You requested in our phone conversation of this date that I set forth the changes the
Lessee has requested. The following changes are to be made in the latest draft of Paragraph
16 of the Lease entitled "SIGNS":
In sub-paragraph A: There is to be stricken from the second sentence the words "on or
before December 31, 2003" so that the sentence reads: "The excepted signs shall come into
confirmation with the municipal code either by code revision or by replacement signs such as
is proposed below in B."
In sub-paragraph B: The last sentence shall be amended to read as follows: "The
Portable Sign shall continue to be used and located in its present location and configuration
until the installation of the New Sign."
As you and your client have been advised and agreed upon it will be the sole
responsibility of the Lessor and/or the City to take all appropriate steps and to file such
C\TEMP\THEATER LEASE letter to DH re revisions to Pala 16-Signs 9-2-03.doe
Dawn C. Honeywell, Esq.
September 3, 2003
Page 2
applications as they deem necessary to bring the excepted signs into conformance with
applicable codes. The Lessee will take the laboring oar to obtain the final design and costs for
the New Sign and submit the results to the Lessor. As you are aware, the basic criteria for the
New Sign is an exhibit to the Lease. It is my understanding that this later function will be
coordinated on the Lessor's behalf by Mr. Jerry Ogburn.
This will further confirm my conversation with you of this date in which you were
advised on behalf of the Lessee that the final form of the Lease is to be completed no later than
September 15, 2003. After that date our client will withdraw from further discussions relating
to the Lease. Please be assured of the cooperation of this office to bring this matter to a final
conclusion. I would be pleased to meet with you or discuss the matter further at any time.
Very truly yours,
SLOVAK BARON & EMPEY LLP
MYRON MEYERS
cc: Mr. Riff Markowitz
C:\TEMP\THEATER LEASE letter to DH re revisions to Pala 16-Signs 9-2-03.doc
RESTATED AND AMENDED THEATER LEASE AGREEMENT
By and Between
THE COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS
and
THE PARTNERSHIP FOR THE PERFORMING ARTS, L.P.
A CALIFORNIA LIMITED PARTNERSHIP
1003/005/23049 v11 C+' A-3
RESTATED AND AMENDED THEATER LEASE AGREEMENT
THIS RESTATED AND AMENDED THEATER LEASE AGREEMENT (the "Lease")
is made and entered into this _ day of July, 2003, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate
and public ("Landlord") and THE PARTNERSHIP FOR THE PERFORMING ARTS L.P. A
CALIFORNIA LIMITED PARTNERSHIP ("Tenant") (collectively referred to sometimes as the
"Parties").
RECITALS :
A. The Demised Premises, as more particularly described in Exhibit "A", together
with other properties, were leased by Landlord, as lessee, pursuant to that certain Lease and
Purchase Agreement dated November 14, 1988, as amended by that certain Addendum to
Lease/Purchase of Property Agreement dated March 13, 1989, by and among EARL C. STREBE
and FRANCES B. STREBE, as to an undivided one-half interested, and GESKA R. LINANE,
SUSAN S. PORTER and DOROTHY ANN ZABEL STREBE, as to an undivided one-half
interest (collectively, "Master Lessors") and Landlord, as lessee, a memorandum of which was
recorded April 17, 1989 in the Official Records of Riverside County, California as histrument
No. 1230381, and re-recorded May 4, 1989 as Instrument No. 142779, as further amended by
Amendment to Lease dated October 15, 1991, between the successors-in-interest to the Master
Lessors, an amended memorandum of which was recorded on February 14, 1992 as Instrument
No. 051824 of the Official Records of Riverside County, California (as amended the "Master
Ground Lease").
B. Landlord and Tenant originally entered into that certain Theater Lease Agreement
dated as of August 19, 1991 as supplemented by that certain side letter between Landlord and
Tenant dated August 19, 1994 (the "Side Letter") pursuant to which Landlord subleased to
Tenant the Dernised Premises. A First Amendment to Theater Lease Agreement date October 1,
1994 was approved by resolution on November 2, 1994. Collectively, this Sublease and
amendments shall be referred to as the "Original Lease".
C. On September 28, 1998, the Community Redevelopment Agency of the City of
Palm Springs, by Resolution No. 1047, approved the acquisition of the Demised Premises,
pursuant to the Master Ground Lease.
D. Landlord and Tenant wish to revise certain basic terms and consolidate prior
amendments and understandings of the Original Lease by entering into this Restated and
Amended Theater Lease Agreement (the "Lease") which Lease supercedes and replaces the
Original Lease. In addition, Landlord and Tenant wish to sublease certain Common Area Spaces
pursuant to the Subleases attached hereto and incorporated herein by reference as Exhibits `B-1"
and "C-1".
NOW, THEREFORE, in consideration of the above Recitals and the mutual promises of
the parties hereafter set forth, Landlord and Tenant do hereby agree as follows:
t003/005/23049 v11
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1. FUNDAMENTAL LEASE PROVISIONS. Certain fundamental lease
provisions are presented in this section and represent the agreement of the Parties hereto, subject
to to ther 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.
(a) Demised Premises or Property. The tens "Demised Premises" or "Property" as
used herein shall refer to that certain real property located in the City of Palm Springs,
County of Riverside, State of California, commonly referred to as 128 South Palm Canyon
Drive, as more particularly described in Exhibit "A". The Demised Premises consists of the
theater building improvements (the "Theater") and the easement rights retained by Landlord
over the Courtyard Area in front of the main entrance to the Theater ("Courtyard Easement").
The legal description for the Courtyard Easement is attached hereto as Exhibit "A-1."
Landlord shall deliver the Demised Premises to Tenant and Tenant accepts the Demised
Premises from Landlord, in its "AS IS" condition. Tenant accepts the Demised Premises
subject to the rights of Landlord reserved herein and its respective successors-in-interest.
(b) Alley Sublease. Landlord has entered into that certain Business Property Lease as
atnended by the First Amendment to Business Property Lease with Plaza Investment
Company attached hereto and incorporated herein as Exhibit `B" and as amended by the First
Amendment to Business Property Lease for the property known as the Alley (collectively
hereafter the "Business Property Lease"). Concurrently with the execution of this Lease,
Landlord shall enter into a Sublease with Tenant pursuant to the terns and provisions set
forth in Exhibit `13 -2" subletting Landlord's interest in the Business Property Lease to
Tenant (the "Business Property Sublease").
(c) Courtyard Sublease. The Restated and Amended Courtyard Lease consists of
certain rights in the Courtyard and the Trash Bin Area pursuant to the Lease,Agreement
dated with John Wessman, Trustee of the Wessman Family Trust, attached
hereto as Exhibit "C" and incorporated herein by this reference (the "Courtyard Lease").
Concurrently with the execution of this Lease, Landlord shall enter into a Sublease with
Tenant pursuant to Exhibit "C-1" subletting Landlord's interest in the Courtyard Lease to
Tenant (the"Courtyard Sublease")
(d) Approximate Floor Area of Theater (excluding the basement, mezzanine and
exterior balcony): 10,111 square feet.
(e) In reference to the property described in Exhibits "A" and "A-I" and the property
that is the subject of the Alley Sublease and the Courtyard Sublease, Landlord confirms and
warrants that, to the best of its knowledge, all of the existing improvements are all contained
within the property described and there are no encroachments into adjoining property by said
improvements nor are there improvements on adjacent property that encroach into the
property described.
1003/005/23049 v11 -2-
(f) Commencement Date: June 1, 2003
(g) Initial Tenn: June 1, 2003 —May 31, 2004
(h) Extension Options: Fourteen (14) consecutive options as described in Article 4
(i) Rental Rate: Twelve Thousand Four Hundred Dollars ($12,400) per month with
Annual Cost of Living Adjustment starting in June of 2005.
0) Use of Demised Premises: Tenant shall use the Demised Premises for the
purpose of operating first-class live theater with attendant facilities, including a box office,
refreslunent stand, souvenir stand and for no other use or purpose. The tenn live theater shall
mean a theater which houses activities of the nature of musical performances, comedy
performances, high quality films, stage plays, dance performances, concerts, children's
theater, lectures, readings or other presentations before an audience and such other uses
incidental thereto, e.g., rehearsals.
(k) Address for Notices:
Landlord: Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 1786
Palm Springs, California 92263
Attn: Executive Director
Telephone: (760) 323-8197
Tenant: The Partnership for Performing Arts, L.P.
125 E. Tahquitz Canyon Way, Suite 209
Palm Springs, CA 92262
Attn: Managing Director
With a copy to: Slovak Baron& Empey LLP
1800 E.Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: David L. Baron. Esq.
(1) Party to pay utility costs: Tenant(See Article 17).
(m)Security Deposit: $12,400.00 (See Article 5g).
1003/005/23049 v11
2. EXHIBITS. The following drawings and special exhibits are attached hereto
and made a part of this Lease:
Exhibit "A" - Legal Description of Property
Exhibit "A-I" - Legal Description of Courtyard Easement
Exhibit "A-2" - Plot Plan of Property Showing the Location
of Demised Property, the Alley and the
Courtyard Areas
Exhibit `B" - Business Property Lease
Exhibit `B-I" - First Amendment to the Business Property
Lease
Exhibit `B-2" - Sublease of the Business Property Lease
Exhibit "C" - Restated and Amended Lease Agreement
("Courtyard")
Exhibit "C-I" - Courtyard Sublease
Exhibit "D" - Memorandum of Lease
Exhibit"E" - Data on Proposed New Sign
3. USE. Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the Demised Premises, with appurtenances as defined herein, for the purpose of conducting
thereon only the use specified in Article 10) of this Lease.
4. TERM.
(a) Initial Term. The initial term of this Lease ("Initial Tenn") shall commence on
October 1„ 2003 ("Commencement Date") and shall terminated on September 30„ 2004.
(b) Option Tenn. As part of the consideration for the execution of this Lease,
Landlord hereby grants to Tenant options to extend this Lease for the following additional
periods ("Extended Tenns," individually "Extended Tenn"), upon the same terms and
conditions herein:
1. June 1, 2004 through May 30, 2005
2. June 1, 2005 through May 30, 2006
3. June 1, 2006 through May 30, 2007
4. June 1, 2007 through May 30, 2008
5. June 1, 2008 through May 30, 2009
6. June 1, 2009 through May 30, 2010
7. June 1, 2010 through May 30, 2011
8. June 1, 2011 through May 30, 2012
9. June 1, 2012 through May 30, 2013
10. June 1, 2013 through May 30, 2014
11. June 1, 2014 through May 30, 2015
12. June 1, 2015 through May 30, 2016
13. June 1, 2016 through May 30, 2017
14. June 1, 2017 through May 30, 2018
1003/005/23049 v I I
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Tenant must give notice to Landlord of its exercise of each option ("Option Notice") not
less than one hundred and twenty (120) days prior to the expiration of the Initial Tenn or any
Extended Tenn, as the case may be. If Tenant is in default on the date of giving the Option
Notice, the Option Notice shall be ineffective unless Tenant cures such default within the cure
periods set forth in this Lease. If Tenant is in default on the date the Extended Tenn commences,
the Extended Term shall automatically terminate (on the date specified below) unless Tenant has
cured such default on or before the later to occur of the following:
(1) The expiration of the applicable cure period (if any) following Tenant's receipt of
notice from Landlord of the default.
The termination will be effective at 5:00 o'clock p.m. on the later of the dates specified above.
In the event that Tenant should fail to give any Option Notice as provided above, the
Tenant's option to extend the term and any further option thereafter shall terminate and be of no
further force and effect, without any further action by Landlord. Tenant shall not be permitted to
exercise its option for any subsequent Extended Tenn, unless Tenant has exercised all previous
options to extend the tern of the Lease,unless Landlord waives such notice in writing.
5. RENTAL.
(a) Net Lease. The rent provided herein shall be absolutely net to Lessor. Unless
otherwise provided in this Lease, Tenant shall pay all costs, charges and expenses of every
kind and nature against the Premises and any improvements which may arise or become due
during the Tenn and which, except for execution and delivery hereof, would or could have
been payable by Lessor.
(b) Annual Rent. Tenant agrees to pay rent of One Hundred Forty-Eight Thousand
Eight Hundred Dollars ($148,800) per year ("Animal Rent"). The Annual Rent is payable in
twelve (12) equal monthly installments during each lease year, in advance, on or before the
first calendar day of each month without offset or deduction commencing on the
Commencement Date. The Initial Term rent payment shall be in monthly installments of
Twelve Thousand Four Hundred Dollars ($12,400).
(c) Additional Rental. For purposes of this Lease, all monetary obligations of Tenant
under this Lease whether or not designated as additional rent, shall be deemed to be
Additional Rental.
(d) Late Payment. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rental or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which is extremely difficult to ascertain.
Accordingly, any payment of any sum to be paid by Tenant not paid when within ten (10)
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.
1003/005/23049 vl1 -5-
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(e) Interest. Any sun to be paid with interest at a rate designated by this Article 5
shall bear interest from and after written notice has been provided to Tenant that payment is
past due with a ten (10) day period to cure. Failure to cure within the ten (10) day period
shall result in an interest charge at a rate equal to three percent (3%) over the reference rate
being charged by Bank of America, N.A. per annum from time to time during such period so
long as the rate does not exceed the maximum rate permitted by law in which case interest
shall be at the maximum rate allowed by law at the time the sum became due.
(f) Cost of Living Adjustment. After the first option exercise, starting in year two (2)
of the Lease, the Annual Rent and the monthly installment shall be adjusted by any increase
in the Consumer Price Index over the previous Lease Year. The "Consumer Price Index" as
used herein is the Consumer Price Index, All Urban Consumers (All Items), for the Los
Angeles-Anaheim-Riverside Metropolitan Area, published by the United States Department
of Labor, Bureau of Labor Statistics (1982-84 = 100). If both an official index and one or
more unofficial indices are 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.
(g) Security DeRosit. On or before the Commencement Date, Tenant shall deposit
Twelve Thousand Four Hundred Dollars ($12,400.00) with Landlord as a security deposit.
Said Deposit shall be given to secure the faithful performance by the Tenant of all terns,
covenants, and conditions of this Lease by the Tenant to be kept and performed during the
Initial Term. Said deposit shall earn interest at the City's average rate of interest earned for
City Funds during the time period that the deposit is retained. Tenant agrees that if the
Tenant shall fail to pay the rent herein reserved or any other sum required hereby promptly
when due, said deposit may, at the option of the Landlord (but Landlord shall not be required
to) be applied to any rent or other sum due and unpaid, and if the Tenant violates any of the
other teens, covenants, and conditions of this Lease, said deposit may, at Landlord's option,
be applied to any damages suffered by Landlord as a result of Tenant's default to the extent
of the amount of the damages suffered. Nothing contained in this Section g shall in any way
diminish or be construed as waiving any of the Landlord's other remedies as provided in
Article 21 hereof, or by law or in equity. Should the entire Security Deposit, or any portion
thereof, be appropriated and applied by Landlord for the payment of overdue rent or other
sums due and payable to Landlord by Tenant hereunder, then Tenant shall, on the written
demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore said
Security Deposit to its original amount and Tenant's failure to do so within five (5) days after
receipt of such demand shall constitute a material breach of this Lease. Should Tenant
comply with all of the terns, covenants, and conditions of this Lease during the Initial Tenn,
said Security Deposit shall be returied in full to Tenant at the end of the Initial Tenn, or
upon the earlier termination of this Lease as specified herein. Notwithstanding the above, in
the event notice of exercise of the option to extend the Tenn is received, then the Security
Deposit shall be held for the same purpose during the Additional Tenn. In the event notice
of exercise of the option to extend the Tenn is received and the Tenn of the Lease is thereby
extended, the accrued interest earned on the Security Deposit shall be returned to the Tenant.
t003/005/23049 yr l _6-
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(h) Payment of Rental. All rental to be paid by Tenant to Landlord shall be in lawful
money of the United States of America at the address designated in Article 1 hereof, or such
other address as Landlord shall notify Tenant in writing.
6. REAL ESTATE TAXES. In addition to all rentals herein reserved, Tenant shall
pay to Landlord annual real estate taxes and assessments levied upon the Demised Premises. In
addition, Tenant shall pay to Landlord any and all taxes, assessments, and fees which are levied
and/or assessed in lieu of, in substitution for, or in addition to, existing real property taxes
including, without limitation, assessments levied pursuant to the creation of an assessment
district which covers the Demised Premises. Tenant shall also be responsible for the payment of
any business tax which is levied against the businesses operated by Tenant on the Demised
Premises. Such amounts shall be payable within ten (10) days after receipt of a semi-amival
statement to be sent by Landlord to Tenant setting forth the amount of such taxes, assessments
and/or fees based upon the actual tax bill received by Landlord. Even though the tern 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, and any overpayment shall immediately be paid by
Landlord to Tenant. Tenant shall not be treated differently than similarly situated tenants or
property owners with respect to payments of all taxes, assessments or fees.
7. PERSONAL PROPERTY TAXES. During the tern hereof Tenant shall pay
prior to delinquency all taxes assessed against the levied upon fixtures, furnishings, equipment
and all other personal property owned by Tenant located 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. In the event any or all of
the Tenant's fixtures, furnishings, equipment and other personal property shall be assessed and
taxed with the Landlord's real property, the Tenant shall pay to Landlord its share of such taxes
within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth
the amount of such taxes applicable to the Tenant's property.
8. USES PROHIBITED. Tenant shall not use, or pen-nit the Demised Premises, or
any part thereof, to be used for any purpose or purposes other than the express purpose or
purposes for which the Demised Premises are hereby leased pursuant to Article 1(i) hereinabove.
Tenant may, however, sell or cause to be sold alcoholic beverages provided that it obtains all
necessary permits and licenses, and complies with all applicable laws, statutes and regulations
concerning the sale of alcoholic beverages. Tenant shall not sell or permit to be kept, used,
displayed, performed or sold in or about the Demised Premises (a) pornographic or sexually
explicit books, magazines, literature, films, drarna, printed material, sexual paraphernalia, or
other material or media which would be considered lewd, obscene or licentious, or(b) any article
which may be prohibited by standard forms of fire insurance policies. Tenant shall not install
video or arcade game machines unless expressly permitted by this Lease. Tenant shall comply
with any and all requirements, pertaining to the use of the Demised Premises, of any insurance
organization or company necessary for the maintenance of reasonable fire and public liability
insurance, covering the buildings within the Demised Premises and appurtenances.
1003/005/23049 v11
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Tenant shall not commit, or suffer to be committed, any waste upon the Demised
Premises, or any nuisance or other act or thing which may disturb the quiet enjoyment of any
other tenant or occupant of the Property. Tenant shall not conduct or permit to be conducted any
sale by auction in, upon or from the Demised Premises, whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors, or pursuant to any
bankruptcy or other solvency proceeding nor display any"going out of business" or similar sign.
Tenant shall not engage in any activity in, 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 teen "Environmental Law"
shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health,
industrial hygiene or the enviromnental 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 seq.; (ii) the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901, et seq.; (iii)
California Health and Safety Code Sections 25100, et seq.; (iv) the Safe Drinking Water and
Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5, et seq.; (v)
California Health and Safety Code Section 25359.7; (vi) California Health and Safety Code
Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317, et seq.;
(viii) California Water Code Section 1300, et seq.; and (ix) California Civil Code Section 3479,
et seq., as such laws are amended and the regulations and administrative codes applicable
thereto. The term "Hazardous Material" includes, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive
hazardous waste", "or "hazardous substance" or considered a waste, condition of pollution or
nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction
thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer
and/or reproductive toxicity. It is the intent of the parties hereto to construe the teens
"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 Materials on the Demised Premises and all
notices of violation of the Environmental Laws received by Tenant.
9. ALTERATIONS. Except as contemplated in Article 10, Tenant shall not make,
or suffer to be made, any structural alterations to the Demised Premises, or any part thereof, or
the building(s) within the Demised Premises or change the appearance of the building(s) within
the Demised Premises without the prior written consent of Landlord. If Tenant wishes to make
additional improvements to the Demised Premises, Tenant shall notify Landlord in writing.
Within fifteen (15) days of receiving such notice from Tenant, Landlord shall send written notice
to Tenant indicating whether Landlord approves or disapproves of the contemplated
improvements. Landlord's approval shall not be unreasonably withheld and any disapproval
shall be in writing and shall explain the reasons for the denial. Any alterations to the Demised
Premises and/or the Common Areas, 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
1003/005/23049 vl l _8-
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Landlord. Tenant shall not in any event make any changes to the exterior of the Demised
Premises. Any such alterations shall be in confonnance with the requirements of all municipal,
state, federal, and other governmental authorities, including requirements pertaining to the
health, welfare or safety of employees or the public and in conformance with reasonable rules
and regulations of Landlord. Any and all fixtures and appurtenances installed by Tenant shall
conform with the requirements of all municipal, state, federal, and governmental authorities
including requirements pertaining to the health, welfare, or safety of employees or the public.
All improvements to be made to the Demised Premises which require the approval of Landlord
shall be under the supervision of a competent architect or competent licensed structural engineer
and made in accordance with plans and specifications approved in writing by Landlord before
the commencement of such work. Minor improvements may not require involvement of an
architect or structural engineer. Landlord may agree to require such on a case by case basis. All
work with respect to any improvements shall be done in a good and workmanlike manner and
diligently prosecuted to completion so that the Demised Premises shall at all tines be a complete
unit except during the period of work. Upon completion of such work, Tenant shall file for
record in the office of the County Recorder for the County in which the Property is located a
Notice of Completion as required or permitted by law. Such improvements shall not be removed
by Tenant but shall at once become a part of the Demised Premises and be surrendered
therewith. As a condition to granting its approval to any of the improvements, Landlord may
require Tenant to provide Landlord with reasonably satisfactory evidence of Tenant's financial
ability to pay for the costs of the improvements and to complete the same as required by this
Lease.
10. MAINTENANCE AND REPAIR.
(a) Maintenance and Repair by Tenant. Landlord shall deliver the Demised Premises
to Tenant in good and sanitary order, condition 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, the Theater
and any other building within the Demised Premises, and other improvements within the
Demised Premises in good and sanitary order, condition, and repair (except as hereinafter
provided), including any equipment installed by Tenant, all signs, locks and closing devices,
all window sashes, casements and frames, doors and door frames, floor coverings, and
carpeting. Tenant's duty hereunder to maintain and repair Premises is limited to items
caused by ordinary usage and is not intended to apply to repairs need due to casualty dainage
to Premises as set forth in paragraph 19 below, civil unrest or any other cause beyond the
reasonable control of the Tenant and/or to repairs or maintenance required to be performed
by the Landlord and/or due to the passage of any new laws, ordinances or regulations that
require modifications to any of the existing improvements on the Premises. Tenant shall
periodically sweep and clean the sidewalks adjacent to the Demised Premises, as needed.
Tenant agrees on the last day of said tern or sooner termination of this Lease to surrender the
Demised Premises with appurtenances in a good, clean and sanitary condition, reasonable use
and wear thereof and damage by fire, act of God or by the elements excepted. Tenant agrees
to surrender the Demised Premises in its original condition, together with all additional
improvements which have been approved by Landlord and installed by Tenant pursuant to
Article 9 above. If Landlord wishes to reserve the right to require Tenant to remove any such
additional improvements upon the expiration or earlier termination of this Lease, Landlord
1003/005/23049 v11 _9_
must reserve such right in its notice of approval (which is described in Article 9 above). If
Tenant is required to remove any improvements from the Demised Premises upon the
expiration or earlier termination of this Lease, Tenant shall do so at Tenant's sole cost and
expense, and Tenant will repair any damage to the Demised Premises caused by such
removal.
(b) Maintenance and Repair by Landlord. Notwithstanding anything to the contrary
contained in Section 10a, Landlord shall maintain in good repair and in compliance with all
present and future laws, ordinances and regulations, at Landlord's sole cost and expense, all
of the following: (1) the interior and exterior walls, roof, floor, and all other structural
portions of all buildings located on the Demised Premises; (2) all electrical wiring, conduits,
pipes and plumbing which are located on the Demised Premises and/or which serve the
Demised Premises; (3) the various utilities which serve the Demised Premises; (4) the
heating and air-conditioning system which serves the Demised Premises. Landlord shall not
be responsible for maintaining or replacing specialized light or other fixtures and equipment
for the theater productions, nor for the drapes, seats or carpet located in the Theater. Nor
shall Landlord be responsible for any upgrades to the electric or air conditioning equipment
installed by Tenant. Landlord shall not be required to make repairs necessitated by reason of
the negligence of Tenant or anyone claiming under Tenant, or by reason of the failure of
Tenant to perform or observe the conditions or agreements in this Lease contained, or caused
by unauthorized alterations, additions or improvements made by Tenant or anyone claiming
under Tenant. The tern "exterior walls", as used in this Section, shall include plate glass,
window cases or window frames. Tenant agrees that it will not, nor will it authorize any
person to, go onto the roof of the building of which the Demised Premises are a part without
the prior written consent of Landlord. Said consent will be given only upon Landlord's
satisfaction that any repairs necessitated as a result of Tenant's action will be made by
Tenant at Tenant's expense. Tenant shall use its reasonable cormnercial efforts arising from
its ordinary use and occupancy of the Demised Premises to notify the Landlord of any
condition in the Demised Premises it observes that may require repairs by the Landlord. In
this regard, the Tenant shall not be required to engage the services of an architect , engineer
or contractor. Landlord shall at all reasonable times have access to the Demised Premise to
conduct such inspections and evaluations as Landlord shall require. The failure of the Tenant
to notify the Landlord shall not release or relieve the Landlord from its obligations under this
paragraph 10b. After notice or upon discovery by Landlord of the need for any repairs or
maintenance, Landlord shall have a reasonable period of time thereafter to commence and
complete said repairs. However, Landlord shall make a good-faith effort to make all repairs
required of Landlord herein in an expeditious manner in order to minimize the negative
impact of such disrepairs on Tenant's business. Landlord shall conduct at least an annual
inspection of the Premises within one (1) month of the end of the perfonning season to aid
Landlord in determining if any repairs by Landlord appear to be necessary.
11. COMPLIANCE WITH LAWS. Except as to structural portions and matters set
forth in paragraph 10a and l Ob, 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 or which shall
1003/005/23049 vl1 _1 Q_
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hereinafter be in force. 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.
12. INSURANCE.
(a) Landlord to Provide Property Insurance. Landlord shall maintain, at Landlord's
sole cost and expense, fire, earthquake and extended coverage insurance throughout the tern
of this Lease, on all buildings and improvements located on the Demised Premises (and
fixtures thereto, including, but not limited to, the drapes and seats located in the Theater), in
an amount equal to one hundred percent (100%) of the replacement value of the Demised
Premises, together with such other insurance, coverages and endorsements as Landlord may
determine in its sole discretion. Tenant hereby waives any right of recovery from Landlord,
its officers and employees, and Landlord hereby waives any right of loss or damage
(including consequential loss) resulting from any of the perils insured against as a result of
said insurance.
(b) Tenant to Provide Other Insurance.
i) 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.
ii) Tenant to Provide Liability Insurance. During the entire term of this Lease,
the Tenant shall, at the Tenant's sole cost and expense, for the mutual benefit of Landlord
and Tenant, maintain comprehensive general liability insurance insuring against claims
for bodily injury, death or property damage occurring in, upon or about the 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 $500,000.00 per person,
$1,000,000,00 per occurrence and $1,000,000.00 products and completed operations and
property damage limits of $250,000.00 per occurrence and $1,000,000.00 in the
aggregate.
iii) 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.
1003/005/23049 v1I -11-
iv) General Provisions A 2plicable to Tenant's Insurance. All of the policies of
insurance required to be procured by Tenant pursuant to this Section 12b shall be primary
insurance and shall name Landlord, its officers, employees and agents, and the Master
Lessor 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
Landlord. Prior to the Initial Tenn 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")
reasonably determines, after taking into consideration current insurance market
conditions, that the Tenant's activities in the Demised Premises creates an increased or
decreased risk of loss to the Landlord, Tenant agrees that the minimurn limits of any
insurance policy required to be obtained by Tenant may be changed accordingly upon
receipt of written notice from the Risk Manager; provided that Tenant shall have the right
to appeal a determination of increased coverage by the Risk Manager to the City Council
of Landlord within ten (10) days of receipt of notice from the risk Manager and/or to
submit the determination of the Risk Manager to binding mandatory mediation for final
detenination as elsewhere provided in this Lease . 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.
v) Electrical Overloadin . If Tenant installs upon the Demised Premises any
electrical equipment which constitutes an overload of the electrical lines of the premises,
Tenant shall, at its own expense, make whatever changes are necessary to comply with
the requirements of the insurance underwriters and any governmental authority having
jurisdiction thereof, but nothing herein contained shall be deemed to constitute
Landlord's consent to such overloading. Tenant shall, at its own expense, comply with
all requirements, including the installation of fire extinguishers or automatic dry-
chemical extinguishing system, of the insurance underwriters or any governmental
authority having jurisdiction thereof, necessary for the maintenance of fire and extended
coverage insurance for the premises.
1003/005/23049 v11 -12-
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13. INDEMNIFICATION. Tenant will indemnify, defend and hold Landlord
exempt and harmless from and against any damage or injury to any person or property arising
out of Tenant's use of the Dernised Premises, except that such indemnification shall not apply to
(1) any claim for injury to any person or property which is caused by the failure of Landlord to
follow its obligations under the Lease, or negligence or willful misconduct of Landlord. As used
in this Article 13, the phrase "use of the Demised Premises" contemplates the actual physical use
of the Demised Premises.
Landlord will indemnify, defend and hold Tenant exempt and harmless from and against
any darnage or injury to any person or property arising out of Landlord's failure to comply with
any of the teens and provisions of this Lease and/or use of the Demised Premises, except that
such indemnification shall not apply to (1) any claim for injury to any person or property which
is caused by the failure of Tenant to follow its obligations under the Lease, or negligence or
willful misconduct of Tenant. As used in this Article 13, the phrase "use of the Demised
Premises" contemplates the actual physical use of the Demised Premises. Notwithstanding the
above, any damages claimed as a result of Landlords inability to provide parking pursuant to the
requirements of Paragraph 31 herein shall be limited to the specific performance, attorney's fees
and rent abatement provisions set forth therein.
14. FREE FROM LIENS. Tenant shall keep the Demised Premises, the buildings
within the Demised Premises, the property on which the Demised Premises are situated, 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. If Tenant shall fail to pay any charge for
which a mechanic's lien claim and suit to foreclose the lien have been filed, and shall not have
obtained the release of said lien from the property subject to such lien, Landlord may (but shall
not be so required to) pay said claim and any costs, and the amount so paid, together with
reasonable attorneys' fees incurred in connection therewith, shall be immediately due and owing
from Tenant to Landlord, together with interest at the rate prescribed in Article 5e, on the amount
of the mechanic's lien claim.
15. 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.
16. SIGNS.
A. Landlord covenants that, with the exception of the sign with a video player and
the free standing sign in the sidewalk right of way, the signs which are currently located on the
exterior of the Demised Premises and/or in the Courtyard area described in the Courtyard and/or
Alley Subleases, shall be permitted to remain on the Demised Premises, the Courtyard area and
the Alley area during the tern of this Lease (and during any extensions thereof) for use by
Tenant in connection with Tenant's business. The excepted signs shall come into confonnance
with the municipal code either by code revision or by replacement signs such as is proposed
below in B. Tenant shall not place or permit to be placed any additional signs upon the exterior
1003/005/23049 vi 1 -13-
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or in the windows of the Demised Premises, the Courtyard area or the Alley area, without
Landlord's prior written consent. Any sign installed without such approval shall be immediately
removed by Tenant and, if said sign is not removed by Tenant within three (3) days of written
notice from Landlord to Tenant, then Landlord may remove and destroy said sign without
Tenant's approval and without any liability to Tenant. Signs located in the Courtyard shall be
maintained as required according to the terns of the Courtyard Sublease (Exhibit "C-1").
Revisions to the signs shall be subject to the reasonable approval of the Landlord which approval
shall not be unreasonably withheld or delayed. The Landlord shall reply to any proposed
revision within fourteen (14) days from submission. Any revision shall comply with the City
municipal code requirements related to signage prior to any revisions actually being made to the
signs.
B. There is presently located in the so-called jutting-out area adjacent to the public
street (Palm Canyon ) a temporary 18 inch by 38 inch "portable sign" advertising the Follies (the
"Portable Sign"). It is the intent and agreement of the Landlord and Tenant that the Portable
Sign be replaced by the Landlord with a permanent sign (the "New Sign") at the same location
and in the design and configuration depicted in Exhibit "E" attached hereto and incorporated
herein by this reference. The cost of the design, manufacture and installation of the New Sign
shall be shared equally by the Landlord and Tenant. The maintenance of the New Sign and the
cost of the text to be placed on the New Sign shall be at the sole cost of the Tenant. The New
Sign is currently being processed by the City's planning department and appears to be within all
municipal code requirements. The final design for the New Sign, its costs, and installation shall
be mutually agreed upon by the Landlord and Tenant within Thirty (30) days from the date of
this Lease. Thereafter the parties shall expeditiously take all required steps to have the New Sign
designed, manufactured, cost determined and installed at the earliest possible date. The Portable
Sign shall continue to be used and located in its present location and configuration until the
installation of the New Sign.
17. UTILITIES. Tenant shall pay before delinquency all charges for water, gas,
heat, electricity, power, sewer, telephone service, and all other services and utilities used in,
upon, or about the Demised Premises by Tenant or any of its subtenants, licensees, or
concessionaires during the term of this Lease. Trash removal shall be provided pursuant to the
Courtyard Sublease (Exhibit "C-1"). In this regard the Tenant is assured by Landlord of access
to, use of, and the availability of at least one (1) trash bin during the term of this Lease and all
extensions thereof. The location shall be as specified in the Courtyard Sublease or in the event
of termination of the use of that Trash Bin Site an alternative bin with enclosure shall be
provided by Lessor on the adjacent library property.
18. ENTRY AND INSPECTION. Tenant shall pennit Landlord and his agents to
enter into and upon the Demised Premises at all reasonable times for the purpose of inspecting
the same or for the purpose of maintaining the building(s) within the Demised Premises, or for
the purpose of making repairs, alterations or additions or performing the improvements to any
portion of said building(s), including the erection and maintenance of such scaffolding, canopy,
fences and props as may be required, or for the purpose of posting notices of non-responsibility
for 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 detennined by Landlord. Landlord shall be permitted to do any of the above without
1003/005/23049 v11 -14-
(�PA 4 /7
any rebate of rent and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Demised Premises thereby occasioned. Notwithstanding the above, Landlord is
aware that the theater operation has special hours of usage and that it closes operation during the
summer months and therefore Landlord shall make reasonable efforts to coordinate times for any
repairs deemed necessary with Tenant to reduce to the extent practicable any interference with
Tenant's use of the Premises. Tenant shall permit Landlord, at any time within six (6) months
prior to the expiration of this Lease (as the same may have been extended pursuant to Article 4
above), 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 nonnal business hours, enter upon
said Demised Premises and exhibit same to prospective tenants.
19. CASUALTY.
(a) Notice to Landlord. Tenant shall give prompt notice to Landlord in case of any
fire or other damage to the Demised Premises or the building(s) constituting a portion thereof
lniown to the Tenant.
(b) Partial Casualty to Demised Premises. If the Demised Premises shall be damaged
by any casualty including, but not limited to, civil unrest, vandalism a fire, flood or
earthquake, such that (i) the cost of replacement or repair of the Theater is less than or equal
to 50% of the total replacement cost thereof, or (ii) the cost of replacement or repair of
damage to the Theater, and any other structures comprising the Demised Premises, when
aggregated together is less than or equal to 50% of the total replacement cost thereof, then
Landlord shall promptly repair and restore the same (including all of the real property
improvements constructed by Landlord and/or Tenant) to substantially the condition thereof
immediately prior to said damage or destruction. If insurance proceeds are forthcoming,
Landlord shall not be obligated to commence the restoration and/or repair until Landlord has
received said insurance proceeds. Landlord shall take all reasonable steps necessary so as to
obtain such insurance proceeds promptly so as to prevent delay in restoring and/or repairing
the Demised Premises to its prior condition.
(c) Substantial Casualty to Demised Premises. If the Demised Premises shall be
damaged or destroyed by any casualty(or the other matters described above), such that (i) the
cost of replacement or repair of the Theater exceeds 50% of the total replacement cost
thereof, or (ii) the cost of replacement or repair of damage to the Theater, and any of the
other structures comprising the Demised Premises, when aggregated together exceeds 50% of
the total replacement cost thereof, then Landlord may elect to either replace or repair the
damage as aforesaid, or to cancel this Lease by written notice of cancellation given to Tenant
within 90 days after the date of the casualty. This Lease shall cease and tenninate 20 days
following Tenant's receipt of Landlord's cancellation notice, and Tenant shall vacate and
surrender the Demised Premises to Landlord in accordance with the terns of this Lease. In
determining the cost of replacement of the Theater or any other portion of the Demised
Premises, the cost of foundations and footings shall not be included, except to the extent of
the cost of repair thereto required by such casualty darnage or destruction.
1003/005/23049 vl1 _15_ /n�, /
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(d) Reconstruction. In the event of any reconstruction of the Demised Premises
under this Article 19. Landlord shall be obligated to reconstruct the Demised Premises to the
extent of the condition of the Demised Premises prior to the damage.
(e) Rent Abatement. In the event that any casualty to the Premises is such that
performances are impossible or impractical during the reconstruction as determined by the
Tenant, Tenant shall be entitled to rent abatement for actual performances canceled based on
a ratio of total perfom7ances in the year and the number canceled.
(f) Termination. Upon any termination of this Lease under any of the provisions of
this Section, the parties shall be released thereby without further obligations to the other
party coincident with the surrender of possession of the Demised Premises to Landlord,
except for obligations which have theretofore accrued and be then unpaid.
(g) Determination of Percentage of Damage or Destruction: If either Landlord or
Tenant contends that the percentage of the damage or destruction referred to in sub-sections b
and c above exceeds fifty percent (50%) and the other party disagrees, the determination of
the percentage shall be made in writing by a senior officer of the insurance company that is
to make insurance proceeds available for replacement or repair. If said insurance company
elects not to render such a determination in a timely manner, then, in such event, either
Landlord or Tenant may by written notice to the other elect to have the determination made
by binding mediation in accordance with the mediation provisions of this Lease.
20. ASSIGNMENT AND SUBLETTING. Tenant shall not sublet or assign this
Lease without the prior written consent of Landlord. Landlord shall not unreasonably withhold
its consent to an assignment or sublease to a proposed assignee or sublessee. In no event shall
Landlord be required to approve of any assignment or sublease which would result in a violation
of any other agreements to which Landlord or the City of Palm Springs is a party and/or for
which all of the following criteria are not met: (a) The proposed assignee or sublessee has
submitted to,Landlord financial statements showing that the proposed assignee's or sublessee's
financial condition, including net worth and liquidity, is equal to or greater than Tenant's
financial condition; (b) the proposed assignee or sublessee is morally and financially responsible;
(c) Tenant is not in default in the payment of rent or the performance of any obligations of
Tenant under this Lease; and (d) the proposed assignee or sublessee, in the Landlord's judgment,
has adequate experience in the operation of a theater similar to that located on the Demised
Premises. Any such assignment shall be subject to all of the terns and conditions of this Lease,
including, but not limited to, any restriction on use and trade name pursuant to the provisions
hereof, and the proposed assignee or sublessee shall assume the obligations of Tenant under this
Lease in writing in form satisfactory to Landlord. The proposed assignee or sublessee shall
simultaneously provide to Landlord an estoppel certificate in the form described in Article 25
hereafter. Consent by Landlord to one assignment or subletting shall not be deemed to be a
consent to any subsequent assignment or subletting. 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.
1003/005/23049 vrr -16- A Q /
Landlord shall be under no obligation to consider a request for Landlord's consent to ant
assigmnent or sublease until Tenant shall have submitted in writing to Landlord a request for
Landlord's consent to such assignment or sublease, a history of the proposed assignee's or
sublessee's business experience and such other information as required by Landlord to verify
that the criteria set forth herein are met. Short tern rental by Tenant for specific performances
and user shall not be deemed a subletting assignment.
21. DEFAULT AND REMEDIES.
(a) Default by Tenant. In addition to the defaults described in Article 20
hereinabove, the occurrence of any one or more of the following events shall constitute a
default and breach of this Lease by Tenant: (i) the failure to pay any rental or other payment
required hereunder to or on behalf of Landlord within 10 days after receiving notice from
Landlord of Tenant's failure to pay any such rental or other payment required hereunder at
the time or within the times herein specified for such payment; (ii) the failure to perform any
of Tenant's agreements or obligations hereunder (exclusive of a default in the payment of
money) in a timely mariner. In this regard, Landlord shall give Tenant written notice of
Tenant's failure to perform any of Tenant's agreements or obligations under this Lease.
Tenant shall, upon receipt of said notice commence in a corrunercially reasonable mariner to
perform its obligation and shall proceed with all due diligence to remedy and cure the
claimed default to completion. Provided the Tenant complies with the foregoing, Tenant
shall not be in default under this Lease; (iii) the vacation or abandonment of the Demised
Premises by Tenant; (iv) the making by Tenant of a general assignment for the benefit of
creditors; (v) the filing by Tenant of a voluntary petition in bankruptcy or the adjudication of
Tenant as a bankrupt; (vi) 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; (vii) the filing by any creditor of Tenant of an
involuntary petition in bankruptcy which is not dismissed within sixty (60) days after filing;
or (viii) the attachment, execution or other judicial seizure of all or substantially all of the
assets of Tenant or Tenant's leasehold where such an attachment, execution or seizure is not
discharged within sixty(60) days.
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 to continue the lease in full force and effect and enforce all of its rights and
remedies tinder this Lease, including the right to recover the rental as it becomes due under this
Lease or Landlord shall have the right at any time thereafter to elect to terminate the Lease and
Tenant's light 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 tennination until the time of award exceeds
1003/005/23049 yr 1 _17_
CPR A -";)-D
the amount of such rental loss that the Tenant proves could have been reasonably
avoided; and
(c) The worth at the time of award of the amount by which the unpaid
rental for the balance of the tern after the time of award exceeds the amount of such
rental loss that the Tenant proves could be reasonably avoided.
The "worth at the time of award" of the amounts referred to in subparagraphs (i), ii), and
(iii) above shall be computed by allowing interest (or by discounting in the case of subparagraph
(iii)) 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 pennitted by law.
"Rental" shall include all sums payable pursuant to this Lease on a regular basis;
including "rental," Additional Rental," reimbursement of real estate taxes and any similar
amounts. The payment shall be computed on the basis of the average monthly amount thereof
accruing during any preceding twelve (12) month period selected by Landlord, except that if it
becomes necessary to compute such rental before such a twelve (12) month period has occurred,
then such rental shall be computed on the basis of the average monthly amount hereof accruing
during such shorter period.
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.
Notwithstanding any of the foregoing, the breach of this Lease by Tenant, or an
abandomnent 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 tenninating this Lease or constitute a waiver of Landlord's right to do so.
(b) No Waiver. Acceptance of rental hereunder shall not be deemed a waiver of any
default or a waiver of any of Landlord's remedies.
(c) Landlord's Default. Except as may be elsewhere expressly provided in this
Lease, Landlord shall not be in default unless Landlord fails to perform obligations required
of Landlord within a reasonable time, but in no event later than thirty (30) days after written
notice by Tenant to Landlord, 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 the 30-day period and thereafter
diligently prosecutes the same to completion.
22. 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 licensees, or may, at the
option of Landlord, operate as an assignment to it of any or all of such subleases or subtenancies.
1003/005123049 v I 1
23. FORCE MAJEURE. If either party hereto shall be delayed or prevented from
the perfonnance 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 without fault and beyond the control of the party obligated (financial inability excepted),
perfonnance of such act shall be excused for the period of the delay and the period for the
perfonnance of any such act shall be extended for a period equivalent to the period of such
delay; provided, however, nothing in this Article 24 contained shall excuse Tenant from the
prompt payment of any rental required of Tenant hereunder.
24. ESTOPPEL CERTIFICATE. (a) Each of the parties shall at any time and from
time to time upon not less than twenty (20) days prior notice by the other, execute, acknowledge
and deliver to such other party a statement in writing certifying that this Lease is umnodified and
is in full force and effect (or if there shall have been modifications that this lease is in full force
and effect as modified and stating the modifications), and the dates to which the rent has been
paid, and stating whether or not to the best knowledge of the signer of such certificate such other
party is in default in performing or observing any provision of this Lease, and, if in default,
specifying each such default of which the signer may have knowledge, and such other matters as
such other party may reasonably request, it being intended that any such statement delivered by
Tenant may be relied upon by Landlord or any prospective purchaser of the fee or any
prospective mortgagee or encummbrancer thereof or any prospective assignee of any mortgage
or trust deed upon the fee, and it being further intended that any such statement delivered by
Landlord may be relied upon by any prospective assignee of Tenant's interest in this Lease, any
prospective mortgagee of Lessee. Reliance on any such certificate may not extend to any default
as to which the signer of the certificate shall have had no actual knowledge.
(b) If Landlord desires to refinance or transfer the Premises, or any part thereof,
Tenant hereby agrees to deliver to any lender or transferee designated by Landlord such financial
information concerning Tenant as may be reasonably required by such lender or transferee and is
reasonably available to Tenant. Such statements shall include, but shall not be limited to, the
past three (3) years of financial statements of Tenant. All such financial information shall be
received by Lessor in confidence and shall be used only for the purposes set forth herein.
25. CONDEMNATION. In the event a condemnation or transfer in lieu thereof
results in a taking of any substantial and/or material portion of the Dernised Premises Landlord
or Tenant may, upon written notice given to the other party within thirty (30) days after such
taking or transfer in lieu thereof, terminate this lease. In connection therewith, Landlord and
Tenant acknowledge that:
(a) Landlord (and/or the City of Palm Springs) possesses the power to take the
Demised Premises through eminent domain proceedings;
(b) The business to be conducted by Tenant upon the Demised Premises is not a
viable business without financial assistance from the Landlord or other Donor, therefore if
Tenant must vacate the Demised Premises, it will be extremely impractical,if not impossible,
for Tenant to operate its business elsewhere.
1 0 03/0 0 5/23 049 v11 _1 g_
NA A -��
Therefore, upon such termination Tenant shall have the right to claim and recover from the
Landlord and/or the condenming authority only the amount equal to the value of any
improvements installed by Tenant. Tenant shall not receive any value related to the leasehold
value of the property which shall be paid solely to Landlord.
26, MEMORANDUM OF LEASE. Landlord and Tenant may execute and record a
Memorandum of Lease, in substantially the salve form as Exhibit "G" attached hereto and
incorporated herein by this reference.
27. (INTENTIONALLY OMITTED)").
(a)
28. USE OF LANDLORD'S NAME. Tenant shall not use Landlord's name, for
advertising or promotion without Landlord's consent. It is expressly agreed that the Tenant may
continue to use the reference to the "Palm Springs Follies".
29. TRADE FIXTURES. Tenant shall, at its own cost and expense, install and equip
the Demised Premises with all furniture, fixtures, trade fixtures, equipment and personal property
reasonably required for the operation of Tenant's business. Any and all fixtures and
appurtenances installed by Tenant shall conform with the requirements of all municipal, state,
federal, and governmental authorities including requirements pertaining to the health, welfare or
safety of employees or the public. All furniture and fixtures installed by Tenant shall remain the
property of Tenant during the tern of this Lease provided that Tenant shall not be entitled to
remove any fixtures including, without limitation, heating, security systems, ventilation, air-
conditioning ducts, compressors, equipment and systems, lighting fixtures, electrical systems,
bathroom fixtures and booths during the term hereof without Landlord's prior written consent,
which consent may be withheld or granted in Landlord's sole discretion. On the expiration of
the tens of this Lease or upon any earlier termination hereof, Tenant shall remove at its own
expense all trade fixtures, equipment and personal property upon the Demised Premises,
provided that if Tenant is in default, Landlord may prohibit such removal by notice in writing to
Tenant. If, at the end of the Lease Term or earlier tenmination as is herein provided, Tenant has
left any merchandise, furniture, equipment, signs, trade fixtures or other personal property in or
about the Demised Premises, Landlord may give Tenant written notice to remove such property.
In the event such property is not removed within ten (10) days of the date of said notice,
Landlord may dispose of said property in any manner whatsoever and Tenant hereby waives any
claim or right to said property or any proceeds derived from the sale thereof. Any damage to the
Demised Premises resulting from the installation or removal of any of said trade fixtures or
equipment shall be repaired by or at the cost of Tenant.
30. NOTICE AND NON-RESPONSIBILITY. Prior to commencing any work of
improvement hereunder, Tenant shall notify Landlord so that Landlord can post and record an
appropriate Notice of Non-responsibility.
1003/005/23049 v11 _20_ fi�.nn,// yrt,� S7
31. PARKING.
(a) Tour Group Bus Parking. The Tenant shall notify all tour bus companies of
which Tenant has advanced knowledge, in writing to direct the companies providing buses and
their drivers to park at the City's Transportation Center, located south of the Airport. Downtown
curb-side locations for bus passenger loading and unloading only for a maximum of six (6) tour
buses at any one time will be provided by the City within a 600 foot walking radius of the main
entrance to the Premises. Tenant shall not be in default under this Lease as the result of any tour
bus company's failure to comply with written instructions regarding tour bus parking.
(b) Patron Vehicular Parking. City currently has various parking facilities within a
1200-foot radius of the Premises, or may have such parking facilities owned or operated by the
City Redevelopment Agency, and may acquire or develop other facilities within the Distance
'Criteria (the "Distance Criteria"). Moreover, City may acquire the right to utilize private parking
facilities for public parking t1nough license, lease, easement or other written agreement. These
public or private parking areas as described above, and as they may be modified from time to
time, are collectively described as the "Parking Areas." Landlord covenants that it will provide
parking spaces available on a nonexclusive basis for patrons of the Tenant as follows:
(1) The Parking Areas will meet the Distance Criteria;
(2) The Parking Areas will be available during Tenant's performances (including not
less than one (1) hour prior to and one (1)hour after the performance);
(3) The Parking Areas will contain at least 250 spaces available to the public generally
or patrons of the Tenant exclusively; and
(4) The parking spaces within the Parking Areas will be available for continuous
parking without more restrictive time limits, for a minimun of five (5) hours, or
in lieu of the foregoing, they may be available without time restrictions if the City
has approved a pay for parking program.
Notwithstanding the provisions of paragraph 2 1 c or other provisions of this Lease, in the
event the Landlord fails to comply with this covenant, and the parties cannot agree on corrective
measures, Tenant's remedy shall be to obtain equitable relief and specific performance to compel
Tenant to provide Parking Areas meeting the requirements hereof and/or for attorney's fees and
costs, and/or for abatement of rent. It is further agreed that this covenant and agreement to
provide parking is a material condition of this Lease, and that the parties agree that a breach of
said covenant would result in immediate and continuing damage to the Tenant. The parties
further agree that damages from a breach of this covenant would be difficult if not impossible to
ascertain, and that the provision for parking is a right and entitlement to an interest in land, akin
to an estate in real property, and that because of the uniqueness of said interest and covenant
Landlord agrees that said covenant amongst other legal remedies, is specifically enforceable by a
Court sitting at law or equity. That Landlord acknowledges that it is a public entity and that it
waives its sovereign immunities, whether original or statutory, and waives all requirements of
the government code related to said status including any claim requirements, if any exist, and
hereby agrees that upon a breach by it of said covenant, Landlord may seek an immediate Order
1003/005/23049 A 1 -21_ l((////)�AA //�� 1
of Court, on an ex parte basis, with or without notice, in any form legally cognizable for specific
performance of said covenant and that said Order may be issued, by the Superior Court of
Riverside County. The seeking of such an Order does not waive, nor otherwise alter any other
remedy Tenant may have at law or in equity. It is further agreed that the sole defense to specific
enforcement of said covenant, is compliance therewith. During each day that Landlord does not
provide the parking set forth in this paragraph 31, the rent payable by Tenant pursuant to the
provisions of this Lease shall be abated. Said abatement shall be one thirtieth (30"i) of the
monthly rent then payable by Tenant for each day the parking is no so provided. Should action
be commenced, the prevailing party shall be entitled to recover its attorney's fees and costs.
(c) Employee Parking: The Landlord has no responsibility to provide employee
parking to the Follies under the teens of this lease.
32. TRASH. Tenants use of trash facility shall be as provided in the Courtyard
sublease and shall at be available for Tenant's use during the tens of this Lease and all
extensions thereof.
33. QUIET ENJOYMENT. As long as Tenant is not in default under any provision
of this Lease, and during the tern of this Lease Tenant shall have quiet enjoyment of the
Demised Premises (including the Courtyard and Alley areas described in the subleases). Any
renovation work performed by Landlord to the Demised Premises shall not unreasonably
interfere with the business being operated by Tenant on the Demised Premises. If reasonably
possible, any such restoration work shall be performed by Landlord during the months of July
through September.
34. COMPLIANCE WITH STATE AND LOCAL LAWS. Landlord shall be
responsible for taking any and all steps necessary, at its sole cost and expense, to comply with
any state and local laws or regulations which may apply to the lease or sale of the Demised
Premises, or any other portion of the Property, including, but not limited to, the Subdivision Map
Act (Gov. Code Sections 66410, et seq.) Landlord shall indemnify Tenant from any and all costs
or liabilities incurred by Tenant due to Landlord's failure to comply with such laws and
regulations.
35. MISCELLANEOUS.
(a) 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
(b) Partial Invalidity. If any tern, 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,
(c) Successors in Interest. The covenants herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors, administrators
1003/005/23049 v11 -22-
0 �� A -��
and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally
liable hereunder.
(d) No Oral Agreements. This Lease covers in full each and every agreement of
every kind or nature whatsoever between the parties hereto concerning this Lease, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein, and
there are no oral agreements. 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.
(e) Authority. In the event that Tenant is a corporation or a partnership, each
individual executing this Lease on behalf of said corporation or said partnership, as the case
may be, represents and warrants that he or she is duly authorized to execute and deliver this
Lease on behalf of said corporation or partnership, in accordance with a duly adopted
resolution of the Board of Directors, if a corporation, or in accordance with the Partnership
Agreement, if a partnership, and that this Lease is binding upon said corporation or
partnership in accordance with its terns.
(f) Time. Time is of the essence of this Lease.
(g) Consistency. Each provision herein shall be interpreted so as to be consistent
with every other provision.
(h) Relationship of Parties. The relationship of the parties hereto is that of Landlord
and Tenant, and it is expressly understood and agreed that Landlord does not in any way or
for any purpose become a partner of Tenant in the conduct of Tenant's business or otherwise,
or a joint venturer with Tenant, and that the provisions of this Lease and the agreements
relating to rent payable hereunder are included solely for the purpose of providing a method
whereby rental payments are to be measured and ascertained.
(i) Nondiscrimination. Tenant herein covenants by and for itself, its heirs, executors,
administrators and assigns and all persons claiming under or through it, and this Lease is
made and accepted upon and subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of persons on account of race,
sex, marital status, color, creed, national origin or ancestry, in the leasing, subleasing,
licensing, 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, licensees or
vendees in the Demised Premises. All deeds, leases or contracts entered into by Tenant shall
contain or be subject to substantially the following nondiscrimination or non-segregation
clauses:
i) Deeds. hi deeds the following language shall appear: "The grantee herein
covenants by and for himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of persons on account of
1003/005/23049 v11 -23-
NA h -a�
race, color, creed, religion, sex, sexual preference, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
premises herein conveyed, nor shall the grantee, or any person claiming under or through
him or her, 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, subtenants, sublessees or vendees in the premises herein conveyed. The
foregoing covenants shall run with the land."
ii) Leases. In leases the following language shall appear: "The lessee herein
covenants by and for himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or her, 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, color, creed, religion, sex, sexual preference, marital status, national origin or
ancestry, in the leasing subleasing, transferring, use, occupancy, tenure or enjoyment of
the premises herein leased nor shall the lessee, or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, sublessees, subtenants or vendees in the premises herein leased."
iii) Contracts. Any contracts which Tenant or Tenant's heirs, executors,
administrators, or assigns propose to enter into relating to the sale, transfer, or leasing of
the Demised Premises shall contain a nondiscrimination and non-segregation clause
substantially as set forth in this section. Such contracts shall provide that such clause
shall be binding upon and shall obligate the contracting party and any subcontracting
party or transferee under the instrument.
0) 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 as specified in Article 10). Either party may change the address set forth
in Article 10) 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.
(k) Holding Over. Any holding over after the expiration of the tern of this Lease,
with the consent of Landlord, express or implied, shall be construed to be a tenancy from
month to month, cancelable upon thirty (30) days written notice, and at a monthly rental
equal to one hundred fifty percent (150%) of the nornial percentage rental and upon terns
and conditions as existed during the last year of the term hereof.
1003/005/23049 vl1 -24-
NIA A -a7
36. MANDATORY MEDIATION PROVISIONS:
MEDIATION: Landlord and Tenant agree that upon the written demand of either
party, whether made before or after the institution of any legal proceedings, but prior to the
rendering of any judgment in that proceeding, all disputes regarding the enforcement,
interpretation, administration, interests, rights, duties or obligations of the parties to this Lease
shall be heard and resolved pursuant to the alternative dispute resolution set forth in this
Paragraph 36.
(a) Appointment and Powers of Mediator: All matters to be heard and resolved
pursuant to this Paragraph shall be heard and resolved by a single appointed Mediator who
shall be a retired judge from either the California Superior Court, the California Court of
Appeals, the California Supreme Court, the United States District Court or the United States
Court of Appeals, or such other qualified person as the parties may mutually agree. The
parties to this Lease who are involved in the dispute shall agree and appoint a single
Mediator who shall then try all issues, whether of fact or law, and report in writing to all
parties to the disputes all findings of facts and issues and decisions of law and the final
judgments made thereon, in sufficient detail to inform each party to the basis of the
Mediator's decision. The Mediator shall try all issues as if he/she were a California Superior
Court judge, sitting without a jury, and shall (unless otherwise limited by any term or
provision of this Lease) have all legal and equitable powers granted a California Superior
Court judge. Any Mediator selected pursuant to this Section shall be considered a temporary
judge appointed pursuant to Article 6, Section 21 of the California Constitution.
(b) Discovery and Hearing Procedures. Prior to the hearing, the parties shall have
fiill discovery rights as provided by the California Code of Civil Procedure. At the hearing,
the parties shall have the right to present evidence, examine and cross-examine lay and
expert witnesses, submit briefs and have arguments of counsel heard, all in accordance with a
briefing and hearing schedule reasonably established by the Mediator. The Mediator shall be
required to follow and adhere to all laws, rules and regulations of the State of California in
the hearing of testimony, admission of evidence, conduct of discovery, issuance of a
judgment and fashioning of a remedy. If the parties involved in the dispute are unable to
agree on a Mediator, any party to the dispute may seek to have a single referee appointed by
a California Superior Court and the hearing shall be held in Riverside County pursuant to
California Code of Civil Procedure Section 640.
(c) Pees and Costs. The cost of any proceeding held pursuant to this paragraph shall
initially be borne equally by the parties involved in the dispute, and each party shall bear its
own attorney's fees. If any party to the dispute fails to timely pay its fees or costs, or fails to
cooperate in the administration of the hearing and decision process as determined by the
Mediator, the Mediator shall upon the written request of any party to the dispute be required
to issue a written notice of breach of the defaulting party and, if the defaulting party fails to
timely respond or cooperate within the period of time set forth in the notice of default (which
in any event may not exceed thirty (30) calendar days), then the Mediator shall upon the
request of any non-defaulting party render a default judgment against the defaulting party.
1003/005/23049 vl1 -25-
0-IAA h -:�8
(d) Judgment. At the end of the hearing, the Mediator shall issue a written judgment
(which may include an award of attorneys' fees and costs, which judgment shall be final and
binding between the parties and may be entered as a final judgment in a California Superior
Court. The Mediator shall use his/her best efforts to finally resolve the dispute and issue a
final judgment within sixty(60) calendar days from his/her appointment. Judgment upon any
award rendered by any arbitrator may be entered in any court having jurisdiction.
(e) Other Relief. Nothing in this Mediation provision shall preclude either party from
seeking equitable relief and/or the rights and remedies contemplated by the,provisions of
Paragraph 31 (Parking) from a court of competent jurisdiction .
(f) Statute of Limitations. The statute of limitations, estoppel, waiver, laehes and
similar doctrines which would otherwise be applicable in an action brought by a party shall
be applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes.
37. JURY WAIVER: LANDLORD AND TENANT (BY ITS ACCEPTANCE
IIEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG LANDLORD AND TENANT ARISING OUT
OF OR IN ANY WAY RELATED TO THIS LEASE OR ANY OTHER RELATED
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO BOTH
LANDLORD AND TENANT.
IN WITNESS WHEREOF, the Parties have duly executed this Lease together with the
herein referred to Exhibits which are attached hereto, on the day and year first above written in
Palm Springs, California.
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
By: By:
Assistant Secretary Executive Director
"LANDLORD"
REVIEWED AND APPROVED:
By:
Agency Counsel
THE PARTNERSHIP FOR THE PERFORMING
ARTS, L.P., a California limited partnership
By: The Rifael Corp., a California corporation, its
General Partner
By:
Riff Markowitz, President
"TENANT"
1003/005/23049 v11 -26-
(2& 4 `a?
EXHIBIT "A"
LEGAL DESCRIPTION OF THE THEATER
[TO BE INSERTED]
I003/005/23049 vI I
EXHIBIT "A"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
C'44 � -3a
EXHIBIT "A-1"
LEGAL DESCRIPTION OF COURTYARD EASEMENT
(TO BE INSERTEDI
1003/005/23049 v11
EXHIBIT "A-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
0
EXHIBIT "A-2"
PLOT PLAN (SHOWING ENTIRE SITE)
[TO BE INSERTEDI
1003/005/23049 v I I
EXHIBIT "A-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
e k A � -� a
EXHIBIT `B"
BUSINESS PROPERTY LEASE
[TO BE INSERTEDI
1003/005/23049 vlt
EXHIBIT `B"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
CAA � - � �
EXHIBIT `B-1"
FIRST AMENDMENT TO BUSINESS PROPERTY LEASE
This FIRST AMENDMENT TO BUSINESS PROPERTY LEASE: This "Amendment'
is made and entered into as of , 2003, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ("Agency" or "Tenant'),
the CITY OF PALM SPRINGS ("City"), and THE PLAZA INVESTMENT COMPANY,
("Landlord").
RECITALS :
A. Landlord and City entered into that certain Business Property Lease dated
October 3, 2001 concerning the lease of the alley leading from the Plaza Theater to Indian
Canyon Drive.
B. The parties agree that it is in the best interest of all parties involved for certain
amendments to be made to the Lease teen, the rent and the transfer of the leasehold interest from
the City to the Agency.
NOW, THEREFORE, Agency, City and Landlord agree as follows:
1. Paragraph L, the term of the Lease, shall be revised as follows:
(a) The initial term of this Sublease ("Initial Term") shall commence on June
1, 2003 ("Commencement Date") and shall terminated on May 31, 2004.
(b) Option Term. As part of the consideration for the execution of this Lease,
Lessor hereby grants to Lessee options to extend this Lease for the following additional
periods ("Extended Terms," individually "Extended Term"), upon the same terms and
conditions herein:
1. June 1, 2004 through May 31, 2005
2. June 1, 2005 through May 31, 2006
3. June 1, 2006 through May 31, 2007
4. June 1, 2007 through May 31, 2008
5. June 1, 2008 through May 31, 2009
6. June 1, 2009 through May 31, 2010
7. June 1, 2010 through May 31, 2011
S. June 1, 2011 through May 31, 2012
9. June 1, 2012 through May 31, 2013
10. June 1, 2013 through May 31, 2014
11. June 1, 2014 through May 31, 2015
12. June 1, 2015 through May 31, 2016
13. June 1, 2016 through May 31, 2017
14. June 1, 2017 through May 31, 2018
1003/005/23049 vl l
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
0kA A -3W
(e) Lessee must give notice to Lessor of its exercise of each option ("Option
Notice") not less than one hundred and twenty (120) days prior to the expiration of the Initial
Tenn or any Extended Term, as the case may be. If Lessee is in default on the date of giving the
Option Notice, the Option Notice shall be ineffective unless Lessee cures such default with in 15
days of giving the Option Notice. If Lessee is in default on the date the Extended Tenn
commences, the Extended Tenn shall automatically terminate (on the date specified below)
unless Lessee has cured such default on or before the later to occur of the following:
(1) The expiration of the applicable cure period (if any) following Sublessee's receipt
of notice from Lessee or the default; or
(2) The fifteenth (151i) day following the commencement of the Extended Tenn.
(3) The termination will be effective at 5:00 o'clock p.m. on the later of the dates
specified above.
In the event that Tenant should fail to give any Option Notice as provided above, the
Sublessee's option to extend the tern and any further option thereafter shall terminate and be of
no farther force and effect, without any further action by 'Lessee. Sublessee shall not be
permitted to exercise its option for any subsequent Extended Tenn, unless Sublessee has
exercised all previous options to extend the tern of the Lease, unless Lessee waives such notice
in writing.
(d) Notwithstanding the above, the parties understand and agree that Lessee's
use of the Property pursuant to this Lease and the options hereunder shall not unreasonable effect
the Lessor to utilize its adjacent property or construct any improvements thereon which are
otherwise consistent with City Code requirements.
2. Paragraph 2., the rent paragraph shall be revised as follows: "In addition
to all other payments required of Lessee hereunder, Lessee here agrees to pay Lessor, as
rent for the premises during the full term specified herein Five Hundred Dollars
($500.00) per month commencing July 1, 2003 until June 1, 2007; Six Hundred Dollars
($600.00) per month from June 1, 2007 to June 1, 2010; Seven Hundred Dollars
($700.00)per month from June 1, 2010 to June 1, 2013; Eight Hundred Dollars ($800.00)
per month from June 1, 2013 to June 1, 2017; and Nine Hundred Dollars ($900.00) per
month from June 1, 2017 to June 1, 2018.
3. Parties. The name of the party as Lessee shall be changed from the City of
Palm Springs to the Community Redevelopment Agency of the City Palm Springs and all
interests, rights and obligations herein pursuant to this Amended Business Property Lease
shalt be transferred to the Cormmunity Redevelopment Agency.
4. Authority. Each individual executing this Amendment and any related
documents on behalf of a corporation or a partnership, as the case may be, represents and
warrants that he or she is duly authorized to execute and deliver such documents on
behalf of said entity, in accordance with a duly adopted resolution of the Board of
1003/005/23049 v11
EXHIBIT`B-I"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
CkA A -� s
Directors, if a corporation, or in accordance with the partnership agreement, if a
partnership, and that this Amendment and any related documents are binding upon said
entity in accordance with the terns of said documents.
5. No Other Modifications. Except as expressly provided in this
Amendment, the Lease shall remain in fill force and effect without modification.
6. Execution in Counterpart. This Amendment may be executed in one or
more counterparts, and alls o executed shall constitute one agreement binding on all
parties hereto, notwithstanding that all parties are not signatories to the original or the
same counterpart.
DATED: May , 2003 CITY OF PALM SPRINGS
By:
ATTEST:
Agency Secretary
APROVED AS TO FORM:
Agency Counsel
DATED: May_, 2003 COMMUNICTY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
By:
ATTEST:
City Clerk
1003/005/23049 A I
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMEN,QT
APROVED AS TO FORM:
City Attorney
DATED: May , 2003 THE PLAZA INVESTMENT COMPANY
By:
1003/005/23049 vl]
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
ekA A - '� 7
EXHIBIT `B-2"
SUB-LEASE AGREEMENT
BY AND BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
AND THE PARTNERSHIP FOR THE PERFORMING ARTS, LP
In consideration of their respective agreements herein contained, the Community
Redevelopment Agency of the City of Palm Springs, a public entity, ("Lessee") subleases
to the Partnership for the Performing Arts L.P., a California limited partnership, ("Sub-
lessee") those certain premises in the City of Palm Springs, County of Riverside, State of
California, more particularly described in that certain Business Property Lease as
amended entered into between Plaza Investment Company, Inc. as Lessor and the City of
Palm Springs as Lessee dated October 3, 2001 (the `Business Property Lease") and
amended by the First Amendment to Business Property Lease dated , 2003.
In consideration of the payments to be made hereunder and the covenants and
agreements contained herein, the parties hereto agree as follows:
1. Incorporation of Business Property Lease Provisions. Sub-lessee hereby
agrees that all terns, covenants, and conditions of the Business Property Lease and the
amendment to said lease, incorporated herein by this reference, with the exception of
those terms set out specifically in this Sublease, shall bind the Sub-lessee, and be
enforceable by the Lessee as against the Sub-lessee, with equal force as the Lessee is
bound.
2. Tenn.
(e) Initial Tenn. The initial tern of this Sublease (`Initial Tenn")
shall commence on Julie 1, 2003 (`Commencement Date") and shall terminated on May
31, 2004.
(f) Option Tenn. As part of the consideration for the execution of this
Sublease, Lessee hereby grants to Sublessee options to extend this Sublease for the
following additional periods (`Extended Tel-ins," individually "Extended Tenn"), upon
the same terns and conditions herein:
1. June 1, 2004 through May 31, 2005
2. June 1, 2005 through May 31, 2006
3. June 1, 2006 through May 31, 2007
4. June 1, 2007 through May 31, 2008
5. June 1, 2008 through May 31, 2009
6. June 1, 2009 through May 31, 2010
7. June 1, 2010 through May 31, 2011
8. June 1, 2011 through May 31, 2012
1003/005/23049 vI I
EXHIBIT "13-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
clob IWT -�$
9. June 1, 2012 through May 31, 2013
10. June 1, 2013 through May 31, 2014
11. June 1, 2014 through May 31, 2015
12. June 1, 2015 through May 31, 2016
13. June 1, 2016 through May 31, 2017
14. June 1, 2017 through May 31, 2018
(g) Sublessee must give notice to Lessee of its exercise of each option
("Option Notice")not less than one hundred and twenty(120) days prior to the expiration
of the Initial Term or any Extended Tenn, as the case may be. If Sublessee is in default
on the date of giving the Option Notice, the Option Notice shall be ineffective unless
Sublessee cures such default with in 15 days of giving the Option Notice. If Sublessee is
in default on the date the Extended Tenn coimnences, the Extended Tenn shall
automatically tenninate (on the date specified below) unless Sublessee has cured such
default on or before the later to occur of the following:
(2) The expiration of the applicable cure period (if any) following
Sublessee's receipt of notice from Lessee or the default; or
(3) The fifteenth (151h) day following the commencement of the
Extended Tenn.
(h) The termination will be effective at 5:00 o'clock p.m. on the later
of the dates specified above.
In the event that Tenant should fail to give any Option Notice as provided above,
the Sublessee's option to extend the tens and any further option thereafter shall terminate
and be of no farther force and effect, without any further action by Lessee. Sublessee
shall not be pennitted to exercise its option for any subsequent Extended Tenn, unless
Sublessee has exercised all previous options to extend the tern of the Lease, unless
Lessee waives such notice in writing.
3 Rent. Both parties agree that the rent payment for this Sub-Lease
Agreement is included in the amount paid by sublessee in that certain Restated and
Amended Theater Lease Agreement approved on July 30, 2003 by and between the salve
parties.
4. No Security Deposit. Both parties agree that Sub-lessee may disregard
Paragraph 7 of the Business Property Lease as there is no security deposit required under
this agreement nor under the Business Property Lease.
5. Limitation on Liabihty of Sub-lessee. Sub-lessee shall not be held
responsible for any actions by other individuals or entities, including, but not limited to,
agents, employees, or representatives of John Wessman or his affiliated companies, or La
Taqueria, that have an access tight to the premises that cause damage or injury to
1003/005/23049 A I
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
NA A -39
property or person unless they are present as sub-lessee's agents, patrons, representatives,
employee's, guest, or volunteers.
6. Sub-lessee agrees that as supplementary and in addition to any
requirements wider the Business Property Lease, the improvement of storage and
scaffolding to be built on the Premises, as further described in the Business Properly
Lease, shall be built according to an approved City permit and shall be approved in
writing by Lessor under the Business Property Lease. Said improvement shall be
maintained as required by City Code.
7. Lessee shall provide Sub-lessee with any notices received from Lessor
under the Business Property Lease or any notice pursuant to this Sublease Agreement at
the following address:
Mr. Riff Markowitz
Partnership for Performing Arts, L.P.
125 E. Tahquitz Carryon Way, Suite 209
Palm Springs, CA 92262
Notices from Lessor shall be provided as soon as reasonably practical and
Sub-lessee shall have time to cure any defaults up to the amount of time that Lessee has
under the Business Property Lease. For example, Lessee has 72 hours to cure default
notices, therefore assuming Lessee gives Sub-lessee notice within 24 hours, then Sub-
lessee has 48 hours to cure.
8. Sub-lessee shall provide Lessee with written notice or demand of any kind
pursuant to this Sublease Agreement, which may be mailed to:
David H. Ready, City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Pam Springs, CA 92264
with a copy to:
David J. Aleshire, City Attorney
Aleshire &W}nider, LLP
18881 Von Karman, Suite 400
Irvine, CA 92612
9. Enforcement. Sub-lessee has previously occupied that property subject to
the Business Property Lease without approval of Lessor or Lessee. Moreover, Sub-lessee
has committed acts such that Lessor has inserted provisions in the Business Property
Lease holding Lessee responsible for acts connmitted by Sub-lessee, including any legal
fees incurred by Lessor. Accordingly, it is the intent of the parties to establish an
administrative system for enforcement of fines, which can be imposed by the City
through the City Manager or his designee ("Enforcement Officer"). Only those offenses
1003/005/23049 v1I
EXHIBIT "13-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
NA /} - VC)
specifically designated at section a. below, and more specifically detailed in Exhibit `B"
attached hereto and incorporated herein by this reference, shall be subject to fines. The
determination of the Enforcement Officer shall be final, unless appealed in writing within
thirty (30) days to the City Manager. The City Manager's decision on any appeal shall be
final.
a. Fines for Violation of Sublease Terns. Any violation by the Sub-lessee of
any of the terms of the Sublease and the incorporated Business Property Lease
which relate to any maintenance or use requirement shall be subject to the
following fines, which fines shall be payable to the City's Downtown
Maintenance Fund (`Fund"), and any expenditures by the City in relation to its
obligations under this Sublease shall be specifically restricted to moneys available
in the Fund:
(1) First Violation: Written Waring
(2) Second and Third Violations: Twenty-Five Dollars ($25.00)
(3) Fourth Violation: Fifty Dollars ($50.001
(4) Fifth Violation: One Hundred Dollars ($100.00)
(5) Each Subsequent Violation: One Hundred Dollars ($100.00)per
violation
The above schedule of violations shall be calculated on an annual basis, and shall
restart at the beginning of each year following the date this Sublease is approved by the
City.
b. If a violation of this Sublease is not subject to a fine under a. above, or if
the violations exist showing a wanton disregard for the terns of this Sublease,
then any aggrieved party may bring legal action to enforce the terns of this
Agreement. The determination that fines are ineffective under this Subsection b.
shall require the City's concurrence. The parties shall be entitled to specific
performance for any violation described in this Section b.
10. Termination. Lessee has the right to give a 45 day notice of termination
under the Business Property Lease which is building on the Sub-lessee. Lessee agrees
that it will not consider such a termination until such time that Sub-lessee has been given
five (5) violation notices under section 11. above. At that time consideration of
termination shall be placed on agency agenda for board consideration. Sub-lessee shall
be given notice of the date and time of the Agency meeting where the decision to
terminate shall be considered and shall have the right to address the Agency the issue.
It. Insurance. In addition to all insurance requirements under the Business
Property Lease, Sub-lessee shall name the City, the Agency and the Plaza as an additional
insured on its comprehensive liability policy to cover any injuries or damage to persons
or property that may occur from Sub-lessee's use of the Premises.
1003/005/23049 v11
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGRRE�E/�ME(�NT V
12. Obligation to Refrain from Discrimination. There shall be no
discrimination against, or segregation of, any persons, or group of persons, on account of
race, color, creed, religion, sex, marital status, ancestry, or national origin in the
enjoyment of the Premises, nor shall Sub-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, subtenants, Sub-lessees, or vendees of the Premises or any portion
thereof.
13. Conflicts of Interest. No member, official, or employee of Lessee shall
have any personal interest, direct or indirect, in this Agreement nor shall any such
member, officer, official, employee, agent, or representative participate in any decision
relating to this Agreement which affects his personal interests or the interests of any
corporation, partnership, or association in which he is, directly or indirectly, interested.
14. Non-liability of Lessee Personnel. Lessee Personnel shall not be
personally liable to Sub-lessee, or any successor in interest of Sub-lessee, in the event of
any default or breach by Lessee or for any amount which may become due to Sub-lessee
or to its successor, or on any obligations under the tenors of this Agreement.
With the exception of the above noted revisions, all remaining terns and
conditions of the Business Property Lease will remain in effect and the Sub-lessee shall
be bound and subject to them as to the Lessee as well as the Lessor.
[SIGNATURES ON NEXT PAGE]
1003/005/23049 v1I
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
CQ,4 A -cia-
IN WITNESS THEREOF, the parties hereto have executed this Sublease as of the
day and year first above written.
"LESSEE"
COMMUNITY REDEVELOPMETN
AGENCY OF CITY OF PALM SPRINGS,
CALIFORNIA, a public entity
David Ready, Executive Director
ATTEST:
Attest Agency
APPROVED AS TO FORM:
David J. Aleshire
Agency Counsel
"SUB-LESSEE"
PARTNERSHIP FOR PERFORMING ARTS,
LP, a California limited partnership, by Rifael
Corporation, General Partner
Riff Markowitz, President of Rifael
Corporation
[END OF SIGNATURES]
t003/005/23049 vl i
EXHIBIT`13-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
CkA A _�3
EXHIBIT A TO
[TO BE INSERTED]
1003/005/23049 v1I
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT ckh h -VY
EXHIBIT `B"
FINEABLE EVENTS PURSUANT TO
SECTION 8 OF THE SUB-LEASE
The following activities by the Sub-lessee in or on the premises are examples of events
that are or would be subject to the fines provided for in Section 9 (nine) of this Sublease:
1. Any form of construction, including sawing, hammering, pounding, spray
painting, welding, and other noise producing construction activities that disturb
the occupants of any other premises.
2. Storage of flammable, toxic, radio-active and other hazardous matter.
3. Uses that emit dust, smoke, fumes or odors into the atmosphere.
4. Radiation harmful or hazardous to any person or property or which interferes with
any electronic equipment.
5. Refuse disposal or other waste disposal or sewage disposal in any manner not in
compliance with the Business Property Lease.
6. Any modifications to the adjoining buildings and property without the properly
owner's permission.
7. Any nailing, fastening, or otherwise attaching any of Sub-lessee's property to
adjourning buildings, roofs, pipe lines and utility lines without property owner's
authorization.
8. Depositing, tossing or otherwise disposing of trash, debris and other material onto
adjoining properties' roofs.
9. Blocking and/or obstructing the 44 inch width of the north portion of the alley
which has been designated as the required minimum clear passageway for other
authorized users of the alley and for fire escape purposes.
10. Storage of sets and props on the second level of the scaffold-based structure in
such a way that such storage obstructs or otherwise renders useless the required
fire sprinkler system, thereby posing a fire threat that might, could or would affect
adjacent properties.
11. Failure to repair and maintain the entire alleyway to keep it in a clean, presentable
and safe condition, with the understanding that since there are other authorized
users, such users shall be responsible for proper contaimnent and cleanup of their
trash, waste, debris and repair of their damages to the premises caused by such
other users.
1003/005/23049 vl1
EXHIBIT`B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
O (A Vvs
EXHIBIT "C"
RESTATED AND AMENDED LEASE AGREEMENT
(COURTYARD)
This RESTATED AND AMENDED LEASE AGREEMENT ("Lease") is made and
entered into this day of , 2003 (`Effective Date"), by and between
JOHN WESSMAN, TRUSTEE OF THE WESSMAN FAMILY TRUST, DATED NOVEMBER
16,1998, a California corporation ("Lessor"), and the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Lessee").
RECITALS
A. Lessor is the owner of that certain real properly commonly known as the
Courtyard located at Palm Springs, California, including all improvements thereon existing as of
the Lease Commencement Date. The Lessee wishes to lease four areas for signage in the
Courtyard and a separate area for trash, as legally described in Exhibit "A" and "A-l" attached
hereto (the "Courtyard Site" and"Trash Area Site").
B. The Lessor wishes to make the Sites available to Lessee and Lessee wishes to use
such Sites under the terns of this Lease to provide adequate signage and trash removal to support
the Plaza Theatre operations.
AGREEMENT
LEASE.
Lessor hereby leases and demises to Lessee and Lessee hereby hires from Lessor, for the
tern and upon the conditions set forth herein, the Courtyard Site and the Trash Area Site, as
legally described in Exhibit "A" and Exhibit "A-I" respectively. Further, Lessor hereby grants
to Lessee an irrevocable non-exclusive license during the tern of this Lease for ingress and
egress, to and from both of the Site locations seven (7) days a week, twenty-four (24) hours a
day.
LEASE TERM.
Lease Commencement Date, The Lease Commencement Date shall mean the date this Lease is
executed by Lessee.
Lease Term. The initial tern of this Sublease ("Initial Term") shall commence on June 1, 2003
("Commencement Date") and shall terminated on May 31, 2004.
a) Option Term. As part of the consideration for the execution of this Lease,
Lessor hereby grants to Lessee options to extend this Lease for the following
1003/005/23049 v]1 -I-
C2A
additional periods ("Extended Terms," individually"Extended Tenn"), upon the
same teens and conditions herein:
1. June 1, 2004 through May 31, 2005
2. Jane 1, 2005 through May 31, 2006
3. June 1, 2006 through May 31, 2007
4. June 1, 2007 through May 31, 2008
5. June 1, 2008 through May 31, 2009
6. June 1,2009 through May 31, 2010
7. June 1, 2010 through May 31, 2011
8. June 1, 2011 through May 31, 2012
9. June 1, 2012 through May 31, 2013
10. June 1, 2013 through May 31, 2014
11. June 1, 2014 through May 31, 2015
12. June 1, 2015 through May 31, 2016
13, June 1, 2016 through May 31, 2017
14. June 1, 2017 through May 31, 2018
b) Lessee must give notice to Lessor of its exercise of each option ("Option
Notice") not less than one hundred and twenty (120) days prior to the expiration of the Initial
Tenn or any Extended Tenn, as the case may be. If Lessee is in default on the date of giving the
Option Notice, the Option Notice shall be ineffective runless Lessee cures such default with in 15
days of giving the Option Notice. If Lessee is in default on the date the Extended Tenn
commences, the Extended Tenn shall automatically terminate (on the date specified below)
unless Lessee has cured such default on or before the later to occur of the following:
(1) The expiration of the applicable cure period (if any) following Lessee's
receipt of notice from Lessee or the default; or
(2) The fifteenth (151h) day following the commencement of the Extended
Tenn.
(3) The termination will be effective at 5:00 o'clock p.m. on the later of the
dates specified above.
In the event that Lessee should fail to give any Option Notice as provided above, the
Sublessee's option to extend the term and any further option thereafter shall terminate and be of
no farther force and effect, without any further action by Lessee. Lessee shall not be permitted
to exercise its option for any subsequent Extended Tenn, unless Lessee has exercised all
previous options to extend the terns of the Lease, unless Lessor waives such notice in writing.
Delivery of Possession. Lessor shall tender delivery of possession of the Sites to Lessee within
five (5)business days following the Lease Commencement Date.
1003/005123049 vl1 _2_
RENT.
Lessee shall pay to Lessor for the lease of the Site the sum of one dollar ($1.00) per year
("Annual Rent"), which sure shall be paid in advance on the Lease Commencement Date and
each anniversary thereafter.
USE OF SITE.
Use of the Site. Lessee shall use the Site for the purpose of constructing, erecting and
maintaining four signs as described in Exhibit `B" attached hereto and incorporated herein by
this reference. Lessee shall also use the Trash Area Site for all and the three (3) yard cubic trash
bin provided by Landlord thereon for all trash generated from the theater operation.
Compliance with Law. Lessee agrees that all operations and activities by or under Lessee on
the Site shall be conducted in compliance with all applicable statutes, ordinances, orders, laws,
rules and regulations, and the requirements of all federal, state and municipal governments and
appropriate departments, commissions, boards and offices thereof, which may be applicable to
the Site or to the use or mariner of use of the Site.
ALTERATIONS, MAINTENANCE AND REPAIRS.
By Lessee. The Lessee agrees, at its expense, to maintain all of the signs in good condition and
repair, with the exception that if a sign is damaged by action of Lessor's agent, employee or
invitee then Lessor shall contribute to the cost of repair.
Alterations. In the event that either prior to or during the Lease Term any alteration, addition, or
change or otherwise to the Site, or any portion thereof, is required by law or regulation or rule,
the same shall be made by Lessee, at Lessee's sole cost and expense. Subject to obtaining all
requisite governmental permits and authorizations, Lessee shall have the right to make non-
structural alterations to the signs constructed by Lessee upon the Site.
INSURANCE AND INDEMNITY.
Insurance Provided by Lessor. Lessor shall maintain fire and extended coverage insurance
throughout the tern of this Lease. Lessee understands that Lessor's coverages hereunder do not
include Lessee's furniture, fixtures or merchandise. Lessee hereby waives any right of recovery
from Lessor, its officers and employees, and Lessor hereby waives any right of loss or damage
(including consequential loss) resulting from any of the perils insured against as a result of said
insurance.
Indemnification of Parties. The parties agree to indemnify each other, their officers, agents and
employees against, and will hold and save them and each of them harmless from, any and all
actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors,
omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any
person, firm or entity arising out of or in connection with the negligent performance of the work,
operations or activities of each other, their agents, employees, subcontractors, or invitees,
provided for herein, or arising from the use of the Site and the courtyard area by either party or
1003/005/23049 v I 1 -3-
their employees and customers, or arising fi-out the failure of Lessee to keep the Site in good
condition and repair, as herein provided, or arising from the negligent acts or omissions of either
party hereunder, or arising from either party's negligent performance of or failure to perfonn any
term, provision covenant or condition of this Lease, whether or not there is concurrent passive or
active negligence on the part of the other party, its officers, agents or employees but excluding
such claims or liabilities arising from the sole negligence or willful misconduct of the other
party, its officers, agents or employees, who are directly responsible to the other party, and in
connection therewith:
TAXES.
Personal Property Taxes. Lessee agrees to pay, prior to delinquency, all taxes levied upon
personal property, if any, including trade fixtures, and inventory, not owned by Lessor and kept
on or about the Site by or under Lessee.
Real Property Taxes. Lessor agrees to pay all real property taxes (including any possessory
interest taxes and special and ad valorem taxes) and assessments levied or assessed upon the Site.
CASUALTY DAMAGE.
In the event the whole or any part of the sign improvements at the Site shall be damaged
or destroyed by any casualty other than those for which the Lessor shall insure pursuant to
Section 6.1, at any time during the Lease Tenn, Lessee shall have the tight at its discretion to
repair, restore and rebuild such improvements on the same plan and design as existed
immediately prior to such damage or destruction and to the same condition that existed
immediately prior to such damage. Lessee may cancel this Lease by giving written notice of its
election to do so to Lessor within sixty (60) days after Lessee receives notice or acquires
knowledge of such damage or destruction meeting the criteria above.
ASSIGNMENT AND SUBLETTING.
Lessor is in agreement that Lessee may be subleasing the Site to the Partnership for the
Performing Art, LP.
DEFAULT; TERMINATION.
General. Either party may terminate this Lease upon a default by the other party. A
party shall be in default under this Lease if that party fails to perfonn obligations required of it
within a reasonable time, but in no event later than thirty (30) days after written notice from the
other party, specifying wherein the nonperforming party has failed to perform such obligations;
provided, however, that if the nature of the nonperforming party's obligation is such that more
than thirty (30) days are required for performance then the nonperforming party shall not be in
default if it commences performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.
Trash Area Site. The Lessor may tenninate the Trash Area Site usage at its discretion
upon ninety(90) days written notice to Lessee.
1003/005/23049 v11
�M -
QUIET ENJOYMENT.
Lessor hereby warrants, represents and covenants that, Lessee may peaceably and quietly
have, hold, occupy and enjoy the Site and all of the appurtenances thereto without hindrance or
molestation from Lessor or those lawfully claiming an interest in or to the Site through or under
Lessor.
MISCELLANEOUS.
Condemnation. hi the event a condemnation or a transfer in lieu thereof results in a taking of
any portion of the Site, Lessor 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 Site, Lessee may, upon written
notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this
Lease.
Surrender at End of Term. Any improvements built, constricted, or placed upon the Site by or
under Lessee, other than Lessee's trade fixtures, equipment and personal property, shall remain
on the Site and become the absolute property of Lessor without any cost to Lessor upon the
termination of this Lease, whether by lapse of time or by forfeiture by reason of default provided
that Lessee shall have the right to remove its trade fixtures, removable tenant improvements,
equipment and personal property on or before expiration or earlier termination of this Lease,
provided that Lessee repairs any damage occasioned by such removal.
Force Maieure. If either party is delayed, prevented or hindered from the performance of any
covenant or condition of this Lease because of acts of the other party, Acts of God, adverse
weather conditions not reasonably anticipated, war, invasion, insurrection, acts of a public
enemy, riot, mob violence, civil commotion, sabotage, labor disputes, inability to procure or
general shortage of labor, materials, facilities, equipment or supplies on the open market, unusual
delay in transportation, laws, rules, regulations or orders of govermnental or military authorities,
or any other cause beyond the reasonable control of the parties so obligated, whether similar or
dissimilar to the foregoing, financial inability excepted, such performance shall be excused for
the period of the delay, and the period for such performance shall be extended for a period
equivalent to the period of such delay.
Waiver. No written waiver of any breach of any of the terms, covenants, agreements,
restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of
the same or other covenants, agreements, restrictions and conditions hereof. Lessor's acceptance
of any sum payable by Lessee to Lessor under this Lease while Lessee is in default under the
terms of this Lease shall not constitute a waiver by Lessor of such default, other than a default by
Lessee in payment of the sum so accepted by Lessor. Lessee shall not rely on any oral waiver
and shall not rely on any course of conduct as a waiver of any provision of this Lease. Lessee
may rely only on specific waivers confinned in writing.
Notices. Whenever in this Lease it shall be required or permitted that notice or 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 and shall not be deemed to have been duly given or served unless said notice is in writing
and is either personally served (including service by overnight courier) upon the person for
1003/005/23049 v11
-5-
whom intended or mailed, by registered or certified mail, with postage prepaid, addressed to the
patty for whom intended at the address that follows:
Lessor: Wessman Fancily Trust
c/o Wessman Development
1555 South Palm Canyon Drive, Suite G106
Palm Springs, CA 92264
Attn: John Wessman Trustee
Lessee: Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263-2743
Attn: David H. Ready, Executive Director
With a Copy to: David J. Aleshire, Esq.
Aleshire & Wynder, LLP
18881 Von Kannan Avenue
Suite 400
Irvine, CA 92612
Either Lessor or Lessee may change such address by notifying the other party in writing
as to such new address as Lessee or Lessor may desire used and which new address shall
continue as the address until further written notice. If any notice or demand is sent by mail as
aforesaid, the same shall be deemed served or delivered three (3) days after the mailing thereof
in the manner provided above. If any notice or demand is sent by overnight courier as aforesaid,
the same shall be deemed served or delivered twenty-four (24) hours after deposit of the same
with an overnight courier for delivery to the party to whom intended at the address provided
above for such party pursuant to this Section.
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.
Lessee acknowledges that no representations or warranties of any kind or nature not specifically
set forth herein have been made by Lessor or its agents or representatives.
Inurement. Each of the covenants, conditions and agreements herein contained shall inure to
the benefit of and shall apply to and be binding upon the parties hereto and their respective heirs,
legatees, devisees, executors, administrators, successors, assigns, sublessees or any person who
may come into possession of said Site or any part thereof in any manner whatsoever. Nothing in
this Section shall in any way alter the provisions against assignment or subletting hereinabove
provided.
Assignment by Lessor. In the event Lessor shall transfer or convey or be divested of its fee
estate in and to the Site, and as a part of said transaction shall transfer, convey, assign or be
1003/005/23049 v I 1 -6-
divested of its interest as Lessor in and to this Lease, then from and after the effective date of
said assignment, transfer, conveyance, divestiture or reverter and assumption of this Lease by the
transferee, Lessor shall have no further liability, except for liabilities which shall have accrued
and be unsatisfied as of such date, for all of which liabilities Lessor shall continue to be obligated
notwithstanding any such assigmuent, transfer, conveyance, divestiture or reverter.
Severability. If any tern, covenant or condition of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such tern, covenant or condition to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected thereby and each
tern, covenant or condition of this Lease shall be valid and be in force to the fullest extent
permitted by law.
Authority of Lessor. Each individual executing this Lease on behalf of Lessor represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf of Lessor and that
this Lease is binding upon Lessor.
Lessee's Officers and Employees.
Non-liability of Officers and Employees. No officer, official, agent, contractor, or employee of
Lessee shall be personally liable to Lessor, or any successor in interest, in the event of any
default or breach by Lessor or for any amount which may become due to Lessor or to its
successor, or for breach of any obligation of the terms of this Lease.
Conflict of Interest. No officer or employee of Lessee shall have any financial interest, direct
or indirect, in this Lease nor shall any such officer or employee participate in any decision
relating to this Lease which affects the financial interest of any corporation, partnership or
association in which he is, directly or indirectly, interested, in violation of any state statute or
regulation.
Non-Discrimination. There shall be no discrimination against or segregation of any person or
group of persons on account of race, color creed, religion, sex, marital status, handicap, age,
ancestry or national original in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the Site 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 lessees, sublessees,
subtenants or vendees of the Site herein leased.
Real Estate Broker. Lessee and Lessor each represent and warrant to the other that it has not
dealt with any real estate broker and knows of no real estate broker, agent, or finder that may
claim a commission in connection with this Lease, Lessee and Lessor shall each indemnify,
defend, and hold the other harmless from and against any claim for any broker's or finder's fee
arising out of the acts or omissions of the indemnifying party.
[End - Signature Page and Exhibits Follow]
1003/005/23049 v I 1 -7-
U h
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Agreement to be executed
and to be effective as of day and year first hereinabove written.
"LESSOR"
JOHN WESSMAN, TRUSTEE OF THE
WESSMAN FAMILY TRUST, DATED
NOVEMBER 16, 1998
"LESSEE"
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Agency Attorney
[End of Signatures]
1003/005/23049 v I I
O-kA A -5" 3
EXHIBIT "B"
SIGN DESCRIPTIONS
[TO BE INSERTED]
1003/005/23049 vI I
EXHIBIT "C"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
CkA - S S
EXHIBIT "C-1"
SUB-LEASE AGREEMENT
BY AND BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
AND THE PARTNERSHIP FOR THE PERFORMING ARTS, LP
(COURTYARD)
In consideration of their- respective agreements herein contained, the Community
Redevelopment Agency of the City of Palm Springs, a public entity ("Lessee"), subleases to the
Paimcrship for the Performing Arts L.P., a California limited partnership ("Sub-lessee"), those
certain premises in the City of Palm Springs, County of Riverside, State of California, more
particularly described in that certain Restated and Amended Lease Agreement ("Courtyard")
dated , 2003 by and between John Wessman, Trustee of the Wessman Family Trust, and
the Community Redevelopment Agency of the City of Palm Springs, a public body, corporate
and politic (`Lessee").
In consideration of the payments to be made hereunder and the covenants and agreements
contained herein, the parties hereto agree as follows:
1. Incorporation of Restated and Amended Lease Agreement ("Courtyard"). Sub-
lessee hereby agrees that all terms, covenants, and conditions of the Restated and Amended
Lease Agreement are incorporated herein by this reference, with the exception of those terns set
out specifically in this Sublease and shall bind the Sub-lessee, and be enforceable by the Lessee
as against the Sub-lessee, with equal force as the Lessee is bound.
2. Tenn.
c) Initial Tenn. The initial tern of this Sublease (`Initial Tern") shall
commence on June 1, 2003 (`Commencement Date") and shall terminated on May 31, 2004.
d) Option Tenn. As part of the consideration for the execution of this
Sublease, Lessee hereby grants to Sublessee options to extend this Sublease for the following
additional periods (`Extended Terns," individually "Extended Tenn"), upon the same terms and
conditions herein:
1. June 1, 2004 through May 30, 2005
2. June 1, 2005 through May 30, 2006
3. June 1, 2006 through May 30, 2007
4. June 1, 2007 through May 30, 2008
5. June 1, 2008 through May 30, 2009
6. June 1, 2009 through May 30, 2010
7. June 1, 2010 through May 30, 2011
8. June 1, 2011 through May 30, 2012
9. June 1, 2012 through May 30, 2013
10. June 1, 2013 through May 30, 2014
11. June 1, 2014 through May 30, 2015
1003/005/23049 vl I EXHIBIT"C-I"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
C 1 A ���O
12. June 1, 2015 through May 30, 2016
13. June 1, 2016 through May 30, 2017
14. June 1, 2017 through May 30, 2018
e) Sublessee must give notice to Lessee of its exercise of each option
("Option Notice") not less than one hundred and twenty (120) days prior to the expiration of the
ffiitial Tenn or any Extended Tenn, as the case may be. If Sublessee is in default on the date of
giving the Option Notice, the Option Notice shall be ineffective unless Sublessee cures such
default with in 15 days of giving the Option Notice. If Sublessee is in default on the date the
Extended Tenn commences, the Extended Tenn shall automatically terminate (on the date
specified below) unless Sublessee has cured such default on or before the later to occur of the
following:
(4) The expiration of the applicable cure period (if any) following Sublessee's
receipt of notice fi-om Lessee or the default; or
(5) The fifteenth (151') day following the eommencernent of the Extended
Tenn.
f)The termination will be effective at 5:00 o'clock p.m. on the later of the dates
specified above.
In the event that Tenant should fail to give any Option Notice as provided above, the
Sublessee's option to extend the tens and any further option thereafter shall terminate and be of
no further force and effect, without any further action by Lessee. Sublessee shall not be
permitted to exercise its option for any subsequent Extended Tenn, unless Sublessee has
exercised all previous options to extend the term of the Lease, unless Lessee waives such notice
in writing.
2. Lessee shall provide Sub-lessee with any notices received from Lessor under the
Business Property Lease or any notice pursuant to this Sublease Agreement at the following
address:
Mr. Riff Markowitz
Partnership for Performing Arts, L.P.
125 E. Tahquitz Canyon Way, Suite 209
Palm Springs, CA 92262
With a copy to Slovak Baron & Empey, LLP
1800 E. Tahquitz Canyon Way
Patin Springs, CA 92262
Attn: David L. Baron, Esq.
Notices from Lessor shall be provided as soon as reasonably practical and Sub-
lessee shall have time to cure any defaults up to the amount of time that Lessee has under the
Restated and Amended Lease Agreement for the Courtyard.
1003/005n3049 v1I EXHIBIT "C-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
3. Sub-lessee shall provide Lessee with written notice or demand of any kind
pursuant to this Sublease Agreement, which may be mailed to:
David H. Ready, Executive Director
Community Redevelopment Agency of the
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92264
with a copy to:
David J. Aleshire, Agency Counsel
Aleshire &Wynder, LLP
18881 Von Karman, Suite 400
Irvine, CA 92612
4. Insurance. In addition to all insurance requirements under the Restated and
Amended Lease Agreement for the Courtyard, Sublessee shall name the City, the Agency and
additional insured on its comprehensive liability policy to cover any injuries or damages to a
person or property that may occur from Sub-Lessee's use of the premises.
IN WITNESS THEREOF, the parties hereto have executed this Sublease as of the day
and year first above written.
DATED: 2003 "LESSEE"
COMMUNITY REDEVELOPMENT
AGENCY OF CITY OF PALM SPRINGS,
CALIFORNIA, a public entity
David Ready, City Manager
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
BURKE, WILLIAMS & SORENSEN, LLP
David J. Aleshire
Agency Counsel
"SUB-LESSEE"
DATED: , 2003 PARTNERSHIP FOR PERFORMING ARTS,
LP, a California limited partnership,by Rifael
Corporation, General Partner
Riff Markowitz, President of Rifael
Corporation
1003/005/23049 v11 EXHIBIT "C-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
1003/005/23049 vl1 EXHIBIT "C-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
eQ A -��
EXHIBIT "D"
RECORDING REQUESTED BY )
AND WHEN RECORDED, MAIL TO: )
CITY CLERK )
City of Palm Springs )
P.O. Box 2743 )
Palm Springs, CA 92263 )
(Space Above This Line for Recorders Office Use Only)
(Exempt from Recoi ding Peeper Gov.Code§6103)
MEMORANDUM OF LEASE AGREEMENT
THIS MEMORANDUM OF LEASE AGREEMENT, made and entered into on this
day of , 2003, by and between the Community
Redevelopment Agency of the City of Palm Springs, a public body, corporate and public
("LESSOR") and The Partnership for the Performing Arts, L.P., a California Limited Partnership
("LESSEE").
WITNESSETH THAT:
Lessor and Lessee have entered into a Restated and Amended Lease Agreement dated
2003 and containing the following Fundamental Lease Provisions.
FUNDAMENTAL LEASE PROVISIONS. Certain fundamental lease provisions are
presented in this section and represent the agreement of the Parties hereto, subject to father
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 fmdamental lease provisions may appear.
g) Demised Premises or Property. The teen "Demised Premises" or "Property" as
used herein shall refer to that certain real property located in the City of Palm Springs,
County of Riverside, State of California, commonly referred to as 128 South Palm Carryon
Drive, as more particularly described in Exhibit "A". The Demised Premises consists of the
theater building improvements (the "Theater") and the easement rights retained by Landlord
over the Courtyard Area in front of the main entrance to the Theater ("Courtyard Easement").
The legal description for the Courtyard Easement is attached hereto as Exhibit "A-L"
Landlord shall deliver the Demised Premises to Tenant and Tenant accepts the Demised
Premises from Landlord, in its "AS IS" condition. Tenant accepts the Demised Premises
subject to the rights of Landlord reserved herein and its respective successors-in-interest.
h) Alley Sublease. Landlord has entered into that certain Business Property Lease
as amended by the First Amendment to Business Property Lease with Plaza Investment
Company, dated June_, 2003, attached hereto and incorporated herein as Exhibit "B" for
1003/005/23049 vl l
EXHIBIT"D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
ek14 A -�oD
the property known as the Alley(the `Business Property Lease"). Landlord shall enter into a
Sublease with Tenant pursuant to Exhibit `B-l" transferring Landlord's interest to Tenant
(the`Business Property Sublease").
i) Courtyard Sublease. The Restated and Amended Courtyard Lease consists of
certain rights in the Courtyard and the Trash Bin Area pursuant to the Lease Agreement
dated with John Wessman, Trustee of the Wessman Family Trust, attached
hereto as Exhibit "C" and incorporated herein by this reference (the "Courtyard Lease").
Landlord shall enter into a Sublease with Tenant pursuant to Exhibit "C-1" transferring
Landlord's interest to Tenant (the "Courtyard Sublease")
j) Approximate Floor Area of Theater (excluding the basement, mezzanine and
exterior balcony): 10,111 square feet.
k) CormnencementDate: June 1, 2003
1) Initial Term: June 1, 2003—May 31, 2004
m) Extension Options: Fourteen(14) consecutive options as described in Article 4
n) Rental Rate: Twelve Thousand Four Hundred Dollars ($12,400) per month
with Amlual Cost of Living Adjustment starting in June of 2005.
o) Use of Demised Premises: Tenant shall use the Demised Premises for the
purpose of operating first-class live theater with attendant facilities, including a box office,
refreshment stand, souvenir stand and for no other use or purpose. The tern live theater shall
mean a theater which houses activities of the nature of musical performances, cornedy
performances, high quality films, stage plays, dance performances, concerts, children's
theater, lectures, readings or other presentations before an audience and such other uses
incidental thereto, e.g., rehearsals.
p) Address for Notices:
Landlord: Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 1786
Palm Springs, California 92263
Attn: Executive Director
Telephone: (760) 323-8197
Tenant: The Partnership for Performing Arts, L.P.
125 E. Tahquitz Canyon Way, Suite 209
Palm Springs, CA 92262
Attn: Managing Director
q) Party to pay utility costs: Tenant (See Article 17).
t 003/005/23049 v]1
EXHIBIT "D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
UA A t
r) Security Deposit: $12,400.00 (See Article 5g).
1003/005/23049 v11
EXHIBIT "D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
I
IN WITNESS WHEREOF, LESSOR and LESSEE have duly executed this
Memorandtun of Lease Agreement on the day and year first above written.
LESSOR: LESSEE:
THE COMMUNITY REDEVELOPMENT THE PARTNERSHIP FOR THE
AGENCY OF THE CITY OF PALM PERFORMING ARTS, L.P.,
SPRINGS
By: By:
Executive Director Riff Markowitz, President
Attest:
Agency Secretary
1003/005/23049 v11
EXHIBIT "D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
"LESSOR"
State of California )
ss.
County of Riverside )
On before me,
personally appeared and
personally known to me or proved to me on the basis of satisfactory evidence to be the persons
whose names are subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my band and official seal.
Signature (Seal)
"LESSOR"
State of California )
ss.
County of Orange )
On before me, personally appeared
personally known to me or proved to me on the basis of satisfactory
evidence to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
1003/005/23049 vl1
EXHIBIT "D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
/�h ��