HomeMy WebLinkAbout7/30/2003 - STAFF REPORTS (3) DATE: July 30, 2003
TO Community Redevelopment Agency
FROM: Director of the Downtown Development Center and
Director of Community and Economic Development
APPROVE A RESTATED AND AMENDED LEASE AGREEMENT WITH THE
PARTNERSHIP FOR THE PERFORMING ARTS,L.P. FOR THE PLAZA THEATRE
RECOMMENDATION:
That the Community Redevelopment Agency approve a Resolution to
grant a restated and amended lease agreement with the Partnership for
the Performing Arts, LP for the Agency owned Plaza Theatre from October
1, 2003, through May 31, 2018, in a form acceptable to the City Attorney.
SUMMARY:
The Community Redevelopment Agency of the City of Palm Springs
currently has a "Theater Lease Agreement' with The Partnership for the
Performing Arts, LP for the Agency owned Plaza Theatre which
commenced on September 1, 1991 and extends until December 31, 2006
as a consecutive series of annual extension options. This proposed
"Restated and Amended Theater Lease Agreement" would extend and
amend this lease, again as a consecutive series of annual extension
options, from October 1, 2003 through May 31, 2018. The restated and
amended lease includes the Agency owned 10,111 square foot historic
Plaza Theatre building, plus: 1) a Palm Canyon Drive front entrance
Courtyard access easement from Wessman Family Trust; 2) a Courtyard
lease by the Agency from Wessman Family Trust and a sublease to the
tenant which provides for four (4) sign easements within the entrance
Courtyard and use of a Trash Area north of the Theatre; and 3) a lease by
the Agency from Plaza Investment Company, and a sublease to the tenant,
of an Alley behind the Theatre connecting to Indian Canyon Drive for use
by the tenant as set storage and assembly.
BACKGROUND:
The Agency owned site consists of the 10,111 square foot historic Plaza
Theatre building plus: 1) a front entrance Courtyard access easement
from Palm Canyon Drive; 2) a front entrance Courtyard lease which
provides for four (4) sign easements within the Courtyard, and use of a
Trash Area north of the Theatre; and 3) lease of an Alley behind the
Theatre connecting to Indian Canyon Drive on the east.
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Page Two
A proposed "Restated and Amended Theater Lease Agreement" would
continue and amend an existing lease between the Agency and the
Partnership for the Performing Arts, LP, which currently ends on
December 31, 2006, to May 31, 2018. This new agreement would replace
the existing and commence on October 1, 2003.
The current Annual Fair Market Rent (FMR) for this facility, as described
above, is valued at $162,000 triple net as a result of a recent appraisal
conducted for the Agency by Dozier Appraisal Company. The Tenant has
agreed to a current annual building lease amount of$148,800 triple net
plus an annual Alley sublease amount of $6,000. These two amounts
total $154,800, which is slightly below current Fair Market Rent, according
to the appraisal. The tenant has also agreed to pay annual CPI increases
in the rent starting in June, 2005.
The new lease also provides for the addition of a new monument sign in
front of the Plaza Theatre in the Palm Canyon Drive public right of way, as
previously approved by Planning Commission. According to the terms of
the lease, the costs for fabrication, installation and maintenance of this
sign are to be split between the Agency and the tenant.
Also, the lease stipulates that the City will assure that a minimum of 250
public parking spaces are accessible to tenant patrons on a non-
exclusive basis for at least five hours per performance or an unlimited
length of time as paid parking. Tour bus parking is to be accommodated
at the City's Transportation Center near the airport. The City has no
obligation for employee parking of the tenant according to the terms of the
lease.
The Tenant proposes to continue the existing high quality live theater use
of the Agency owned facility for the annual seasonal production of"The
Fabulous Palm Springs Follies" and will privately finance the payment of
the lease obligations through ticket sales and other sources of revenue
resulting from the "Follies"' operations. No public financing is required
The Agency agrees to lease the facility to the Tenant and to accept
Landlord responsibilities consistent with a real estate industry standard
triple net lease. There is no net cost to the Agency since Lease rent
payments will offset ongoing Landlord operations and maintenance
responsibilities of the Agency.
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Page Three
L L
kTJERY . OGBUbi , Downto n Development Center
JO N RA MOND
Dir for f Communi and Economic Development
APPROVED
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ATTACHMENTS: City Man9
1. Resolutions (2)
2. Lease
REVIEWED BY DEPI OF FINANCE
3193
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 Instrument
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 Demised Premises. A First Arendment 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 Septernber 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 supersedes 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-I".
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:
1003/005/23049 v8
1. FUNDAMENTAL LEASE PROVISIONS. Certain fundamental lease
provisions are presented in this section and represent the agreement of the Parties hereto, subject
to further definition and elaboration in the respective referenced sections and elsewhere in this
Lease. In the event of any conflict between any fundamental lease provision and the balance of
this Lease, the latter shall control. References to specific sections are for convenience only and
designate some of the sections where references to the particular fundamental lease provisions
may appear.
(a) Demised Premises or Property. The term "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, eommonrly,reforred 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-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.
(b) 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 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 terms 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" sublettingLandlord'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-l" 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 v8 -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,
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, 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 Spring's, 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 v8 -3-
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-l" - 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-1" - 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-1" - 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 Tenn. The initial term of this Lease ("Initial Term") shall conunence 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 Terms," 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 May30, 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 v8 -4-
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 tennination will be effective at 5:00 o'clock p.m. on the later of the dates specified above.
hi the event that Tenant should fail to give any Option Notice as provided above, the
Tenant's option to extend the tern 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 term 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 ("Annual 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 cormnencing 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 proposes 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 v8 _5_
(e) Interest. Any sum 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) Securityposit. 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 terms,
covenants, and conditions of this Lease by the Tenant to be kept and performed during the
Initial Tenn. Said deposit shall earn interest at the City's average rate of interest eared 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 terms, 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
suns 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 arnount 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 doing the Initial Tern,
said Security Deposit shall be returned in fall 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 Term is received, then the Security
Deposit shall be held for the same purpose during the Additional Term. 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.
1003/005/23049 v8 _6_
(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 Dernised
Premises. Such amounts shall be payable within ten (10) days after receipt of a semi-amual
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 term of this
Lease has expired and Tenant has vacated the Dennised 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 temi 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 amormt of such taxes applicable to the Tenant's property,
8. USES PROHIBITED. Tenant shall not use, or permit 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 I(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 pen-nit to be kept, used,
displayed, performed or sold in or about the Demised Premises (a) pornographic or sexually
explicit books, magazines, literature, films, drama, 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 v8 -7-
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 term "Enviromnental Law"
shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health,
industrial hygiene or the environmental conditions on, under or about the Demised Premises,
including, without limitation, (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601, et 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 tern "Hazardous Material" includes, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive
hazardous waste", "or "hazardous substance" or considered a waste, condition of pollution or
nuisance wider the Environmental Laws; (ii) petroleumn or a petroleum product or fraction
thereof, (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer
and/or reproductive toxicity. It is the intent of the parties hereto to construe the terms
"Hazardous Materials" and "Environmental Laws" in their broadest sense. Tenant shall provide
all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986,
California Health and Safety Code Section 25249.5, et seq. Tenant shall provide prompt written
notice to Landlord of the existence of Hazardous 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 Corm-non 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 A -8-
Landlord. Tenant shall not in any event make any changes to the exterior of the Demised
Premises. Any such alterations shall be in conformance with the requirements of all municipal,
state, federal, and other governmental authorities, including requirements pertaining to the
health, welfare or safety of employees or the public and in conformance with reasonable 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 winder 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 times 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 terni 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
cailieting. 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 damage
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 term 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 v8 -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 performing 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 IOb, 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 v8 _1 0-
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 Properly Insurance. Landlord shall maintain, at Landlord's
sole cost and expense, fire, earthquake and extended coverage insurance throughout the term
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 fiy, 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 hnsurance. 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 v8 -11-
iv) General Provisions Applicable 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 minimum limits of any
insurance policy required to be obtained by Tenant may be changed accordingly upon
receipt of written notice from the Risk Manager; provided that Tenant shall have the right
to appeal a determination of increased coverage by the Risk Manager to the City Council
of Landlord within ten (10) days of receipt of notice from the risk Manager and/or to
submit the determination of the Risk Manager to binding mandatory mediation for final
determination 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 datnage 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 Overloading. If Tenant installs upon the Demised Premises any
electrical equipment which constitutes all 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 v8 -12-
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 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 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 damage or injury to any person or property arising out of Landlord's failure to comply with
any of the terns 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 darnages 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 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 fi-om 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 conformance with the municipal code either by code revision or by a replacement sign such
L1003/005/23049v8
posed below Tenant shall not place or permit to be placed any additional signs
exterior or in the windows of the Demised Premises, the Courtyard area or the Alley
thout Landlord's prior written consent. Any sign installed without such approval shall
� gKd�t'-, 'D`� lfl3 ��
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 11C-
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 "A" frame sign advertising the Follies (the "Aframe"). It is
the intent and agreement of the Landlord and Tenant that the Afrarne be replaced by a pennanent
sign (the "NewSign") substantially in the same location as the Aframe pursuant to plans and
specifications mutually agreed upon by the Landlord and Tenant. As of the date of this Lease,
the Landlord and Tenant have agreed in principal to the location, configuration and design of the
NewSign. A copy of said configuration is attached to this Lease as Exhibit "E" and made a part
hereof. The cost of the design, manufacture and installation of the NewSign shall be shared
equally by the Landlord and Tenant. The text to be placed on the NewSign from time to time
shall be at the sole cost, detennination and expense 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 NewSign, 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 NewSign designed,
manufactured, cost determined and installed at the earliest possible date. Until the NewSign is
so installed the Aframe sign shall con 'rue to be used and located in its present location and
configuration. for
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 permit Landlord and his agents to
enter into and upon the Demised Premises at all reasonable tines 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 determined by Landlord. Landlord shall be permitted to do any of the above without
1003/005/23049 v8 -14- -
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
sure ner 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 normal 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
known 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
inunediately 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.
(e) Substantial Casualty to Demised Premises. If the Demised Premises shall be
darnaged 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 terminate 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 damage or destruction.
1003/005/23049 v8 -15-
(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 performances in the year and the number canceled.
(i) Tennination. 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 v8 -16-
Landlord shall be under no obligation to consider a request for Landlord's consent to an
assignment 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 manner. 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 commercially reasonable manner to
perform its obligation and shall proceed with all due diligence to remedy and clue 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 abandonnent of the Demised
Premises by Tenant; (iv) the making by Tenant of a general assigmnent 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 tight to continue the lease in full force and effect and enforce all of its rights and
remedies under this Lease, including the right to recover the rental as it becomes due under this
Lease or Landlord shall have the right at any time thereafter to elect to terminate the Lease and
Tenant's right to possession thereunder. Upon such termination, Landlord shall have the right to
recover from Tenant:
(a) The worth at the time of award of the unpaid rental which had been
earned at the time of termination;
(b) The worth at the time of award of the amount by which the unpaid
rental which would have been earned after termination until the time of award exceeds
1003/005/23049 A -17-
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 term 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 permitted 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
ainomits. 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 danages against Tenant
hereunder.
Notwithstanding any of the foregoing, the breach of this Lease by Tenant, or all
abandonment of the Demised Premises by Tenant, shall not constitute a termination of this
Lease, or of Tenant's right of possession hereunder, unless and until Landlord elects to do so,
and until such time Landlord shall have the right to enforce all of its rights and remedies under
this Lease, including the right to recover rent, and all other payments to be made by Tenant
hereunder, as they become due. Failure of Landlord to terminate this Lease shall not prevent
Landlord from later terminating this Lease or constitute a waiver of Landlord's right to do so.
(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.
1003/005/23049 v8 _18_
23. FORCE MAJEURE. If either party hereto shall be delayed or prevented fi-om
the performance of any act required hereunder by reason of acts of God, strikes, lockouts, labor
troubles, inability to procure materials, restrictive governmental laws or regulations or other
cause without fault and beyond the control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the period of such
delay; provided, 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 unmodified 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 encunimbrancer 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 condeirmation or transfer in lieu thereof
results in a taking of any substantial and/or material portion of the Demised 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 03/00 5/23 049 A _1 C9_
Therefore, upon such termination Tenant shall have the right to claim and recover from the
Landlord and/or the condemning 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 same 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 govermmental 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 term 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 termination 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 A _20-
31. PARKING.
(a) Tour Group Bus Parkine. 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 through 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; 11-z'601
(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 minimum 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 e 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
Landlord to provide Parking Areas meeting the requirements hereof and/or for attoriey'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 sittW2 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
1003/005/23049 A -21-
by it of said covenant, Landlord may seek an immediate Order 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
(30t1i) 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 terms 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 term of this Lease and all
extensions thereof.
33. QUIET ENJOYMENT. As long as Tenant is not in defardt under any provision
of this Lease, and during the term 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.
1003/005/23049 A -22-
(c) Successors in Interest. The covenants herein contained shall, subject to the
provisions as to assigmnent, apply to and bind the heirs, successors, executors, administrators
and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally
liable hereunder.
(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. hi the event that Tenant is a corporation or a partnership, each
individual executing this Lease on behalf of said corporation or said partnership, as the case
may be, represents and warrants that he or she is duly authorized to execute and deliver this
Lease on behalf of said corporation or partnership, in accordance with a duly adopted
resolution of the Board of Directors, if a corporation, or in accordance with the Partnership
Agreement, if a partnership, and that this Lease is binding upon said corporation or
partnership in accordance with its terms.
(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 hi 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. In deeds the following language shall appear: "The grantee herein
covenants by and for himself or herself, his or her heirs, executors, administrators and
1003/005/23049 A -23-
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
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 Dernised 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 term of this Lease,
with the consent of Landlord, express or implied, shall be construed to be a tenancy from
month to month, cancelable upon thirty (30) days written notice, and at a monthly rental
equal to one hundred fifty percent (150%) of the normal percentage rental and upon terns
and conditions as existed during the last year of the term hereof.
1003/005/23049 A -24-
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 tern 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
full 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.
10031005/23049 A -2 j-
(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) frorn a court of competent jurisdiction .
(f) Statute of Limitations. The statute of limitations, estoppel, waiver, lathes 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
HEREOF) 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 v8 _26_
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
PLAZA THEATRE COMPLEX
All that portion of Block 27 as shown on the map of Palm Springs Townsite, recorded in
Book 09 at Page 432, Records of San Diego County, California, described as follows:
Commencing at the north west corner of Block 27, thence south 00 degrees 08'25" east
along the west line of said Block 27 a distance of 114.00 feet;
Thence north 89 degrees 52'00" east and parallel to the north line of said Block 27, a
distance of 62.12 feet to the True Point of Beginning;
Thence south 00 degrees 08'25" east and parallel to the west line of said Block 27, a
distance of 68.41 feet;
Thence north 89 degrees 52' east and parallel with said north line a distance of 50.68 feet;
Thence south 00 degrees 08' east and parallel with said west line, a distance of 0.47 feet;
Thence north 89 degrees 52' east and parallel with said north line, a distance of 59.00 feet;
Thence north 00 degrees 08'west and parallel with said west line, a distance of 0.47 feet;
Thence north 89 degrees 52' east and parallel with said north line, a distance of 44.58 feet;
Thence north 00 degrees 08'west and parallel with said west line, a distance of 47.48 feet;
Thence north 89 degrees 52' east and parallel with said north line, a distance of 4.45 feet;
Thence north 00 degrees 08' west and parallel with said west line, a distance of 4.75 feet;
Thence south 89 degrees 52'west and parallel with said north line, a distance of 4.45 feet;
Thence north 00 degrees 08' west and parallel with said west line, a distance of 16.18 feet;
Thence south 89 degrees 52' west and parallel with said north line, 154.26 feet, to the Point
of Beginning.
COURTYARD ACCESS EASEMENT
All that portion of Block 27 as shown on the map of Palm Springs Townsite, recorded in
Book 09 at Page 432, Records of San Diego County, California, described as follows:
Commencing at the north west corner of Block 27, thence south 00 degrees 08'25" east
along the west line of said Block 27 a distance of 145.00 feet to the True Point of
Beginning;
Thence continuing south 00 degrees 08'25" east along said west line, a distance of 10.00
feet;
Thence north 89 degrees 52'00" east and parallel to the north line of said Block 27, a
distance of 62.12 feet;
Thence north 00 degrees 08'25" west and parallel to the west line of said Block 27, a
distance of 10.00 feet;
Thence south 89 degrees 52'00" west and parallel to said north line of Block 27, a distance
of 62.12 feet to the Point of Beginning.
SOUTH ACCESS EASEMENT
A right of way for ingress and egress over that portion of Block 27 of Palm Springs, as
shown by map on file in Book 9 Page 432 of Maps, Records of San Diego County,
California, described as follows:
Commencing at a point on the west line of said Block 27 that bears south 00 degrees 08'
east, a distance of 175.70 feet, from the northwest corner thereof;
Thence north 89 degrees 52' east, a distance of 57.80 feet;
Thence south 00 degrees 08' east and parallel with said west line 7.10 feet;
Thence north 89 degrees 52' east and parallel with the north line of Block 27, a distance of
55.00 feet;
Thence south 00 degrees 08' east 0.47 feet;
Thence north 89 degrees 52' east and parallel with said north line, 25.75 feet, to the True
Point of Beginning;
Thence south 00 degrees 08' east and parallel with the said west line, 105.50 feet;
Thence south 89 degrees 52' west, a distance of 136.55 feet, to west line of said Block 27;
Thence south 00 degrees 08' east, a distance of 7.00 feet, along said west line;
Thence north 89 degrees 52' east and parallel with said north line a distance of 290.50 feet;
Thence north 00 degrees 08'west along east line of said Block 27, a distance of 7.00 feet;
Thence south 89 degrees 52' west, a distance of 144.95 feet;
Thence north 00 degrees 08' west and parallel with said west line, 105.50 feet, to a point
on the south wall of Plaza Theatre Building;
Thence south 89 degrees 52' west along said wall, 7.00 feet to the True Point of Beginning.
NORTH CORRIDOR ACCESS EASEMENT
An easement for ingress and egress purposes, 8.00 feet wide, over that portion of Block
27 of Palm Springs, as shown on map on file in Book 9,Page 432 of Maps, Records of
San Diego County, California, the centerline of said easement is described as follows:
Beginning at a point on the west line of said Block 27, distant south 00 degrees 08'00"
east, 114.00 feet from the northwest corner of said Block 27;
Thence north 89 degrees 52'00" east, 71.12 feet;
Thence south 00 degrees 08'00", 4.00 feet to the True Point of Beginning;
Thence parallel to the north face of the existing Theatre Building, north 89 degrees 52'00"
east,122.50 feet, more or less, to the easterly face of the existing Theatre Building,
ALLEY AREA LEASE & SUBLEASE
Being a portion of Block 27 of Palm Springs, as shown by the map on file in Book 9, Page
432, of MAPS, RECORDS OF SAN DIEGO, CALIFORNIA, described as follows:
Commencing at a point on the west line of said Block 27 that bears south 00006' east a
distance of 114 feet from the northwest corner thereof;
Thence north 89052' east and parallel with the north line of said Block 27 a distance of
216.36 feet to the true Point of Beginning;
Thence continuing north 89052' east and parallel with said north
line a distance of 74.38 feet, to point on the said east line of said Block 27:
Thence south 00006' east along said east line a distance of 8.81 feet;
Thence south 89052' west and parallel with said north line a distance of 53.72 feet;
Thence south 00006' east and parallel with said east line of Block 27 a distance of 7.37
feet;
Thence south 89052'west and parallel with said north line 20.67 feet to a point on the east
wall of the Plaza Theatre Building;
Thence north 00006' west along said wall a distance of 16.18 feet to the true Point of
Beginning.
TRASH AREA/COURTYARD LEASE & SUBLEASE
A portion of the block designated as "Mrs. Brooks", also known as Block 27 on map of the
town of Palm Springs, in the City of Palm Springs, County of Riverside, State of
California, in Book 9, page 432 of Maps, San Diego County Records by metes and
bounds as follows:
Beginning at a point on northerly line of said Block 100 feet easterly from northwesterly
corner of said block; thence southerly parallel with westerly line of said block 80 feet; thence
easterly parallel with northerly line of said block 10 feet; thence northerly parallel with
westerly line of said block 80 feet; thence westerly along northerly line of said block ten feet
to point of beginning.
Tohquritz Canyon Way
290.5.
800 20.0' "10.0' 180.6
� a
0
I G
Welwood Murray
a
Library I m m
(City) i o
I
i b Plaza llas Flores (Wessman)
Og I =
62.12' ( 154.26' 74.38' O
Worn.cerrlAor ,aea«:'Ease�nw.,s o� Alley Ai
O c 124 S. Palm Canyon
& 4 (Wessman) M 5332'
"-- Courtyard 4.45'
Plaza Theatre
;,�= _2 Complex Plaza estment
EFq 132 S. Palm Canyon Company V
m (Wessman) ^
57.8' 6 50.68' 59.0' 0 44.58' _'
^4. 2' -�^. VA
lsw
141,Note: numbers in Courtyard indicate 7.0'
four (4) Attraction Board Parcels for La Plaza
the Plaza Theatre per this Lease. b (Plaza Investment Company)
La Plaza o
(Plaza Investment Company)
144.95 138.55'
South Acces:,Easenwnt �
r
290.6
Exhibit "Awl " : Plot Plan of Property
Showing the Location of Demised Property, the
Alley and Courtyard Areas, and Access Easements
included in this Lease.
t
0
C
BUSINESS PROPERTY LEASE
In consideration of their respective a?reements herein contained,Plaza Investment Company, Inc.as Lessor, leases to
City of Palm Springs
as Lessee, and Lessee leases front Lessor those certain picitlises in the City of Palm Springs, County of Riverside, State of California,
more particularly described as:
The alley leading from the Plaza Theatre to Indian Canyon Drive not in confict with the easement in the
alley previously given by Lessor
1. TERM. The term of this lease shall be Five (5) Years, Four(4) Months
commencine on September I, 2001, and ending on December 31,2006 unless the term of this lease is terminated earlier as provided
therein.
2. RENT. In addition to all other payments required of Lessee hereunder, Lessee agrees to pay Lessor, as rent for the premises
and during the full trim specified herein,
$500.00 per month commencing September I, 2001;ending December 31,2006
e
Upon execution of this ]case Lessee shall pay to Lessor the sum of SEVEN THOUSAND DOLLARS ($7,000.00) which shall represent
full satisfaction of any claim by either patty concerning previously included attorney's fees and back rent.
Lessee shall deposit as a security deposit per paragraph 7 the sum of$0.00.
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All rent shall be paid monthly in advance on the first clay of each calendar month din ing the term, except as otherwise provided u
this lease. All payments to be made by Lessee to Lessor hereunder shall be matte in lawful money of the United States at Lessors o17ic
located at 115 South Indian Canyon Drive in the City of Palm Springs, or at such other place as Lessor designates in writing from tim
to time. If any installment of rent or any other payment is not paid promptly when due it shall bear interest at the rate often percen
(1061:) per annum from the date when it became due until paid, but this provision shall not be construed to relieve Lessee from an,
default in the making of any payment at the time and in the manner herein specified.
3. USE OF PREMISES AND INDEMNITY. Except only as otherwise provided in Section 24 hereof, Lessee expressl}
agrees to use the premises continuously during the term of this lease in the manner specified herein for the purpose of
staging area for Plaza Theatre.
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and for no other purpose, and not to use S,suffer or permit them or any part of them to be.used in any other manner or for any other
purpose. Lessee agrees (a)not to use or suffer or permit the premises or any part thereof to be used for any purpose or use in violation
of any law,ordinance, or regulation of any governmental authority, or in any manner that will constitute a nuisance or an unreasonable
annoyance to the owners or occupants of adjoining or neighboring property or to other tenants or occupants of the building, or that
might injure the reputation of the building, or for any extra hazardous purpose, or in any manner that might violate any policy or
policies of insurance or suspend, avoid, snake inoperative or increase the rate of any fire, rental insurance, or other insurance, at any
time carried on the building or on any of its contents, (b) not to permit any auction to be conducted in the demised premises, (c) not to
keep or permit to be kept therein any gasoline, distillate or other combustible petroleum product without first obtaining the written
consent of Lessor and all insurance companies carrying fire,rental insurance, or other insurance on the building or on its contents, (d)
not to suffer or permit the premises or any part thereof to be used in any manner that will injure or impair the structural strength of the
building, and (e) not to suffer or permit to be installed or used in the demised premises any machinery or apparatus the weight or
vibration of which would tend to injure or impair the structural strength of the building. Except as provided to the contrary in
paragraph 13 of this lease, Lessee, at Lessee's own expense, shall conform in every respect to all laws, ordinances and regulations now
in force or that are enacted or adopted hereafter which affect the use or occupancy of the demised premises and shall save Lessor
harmless from all penalties, damages or charges imposed for any violation of any law, ordinance or regulation, whether occasioned by
neglect, omission, or willful act of Lessee or any person in the premises holding or occupying them or any part of them under or by
license of Lessee, and from and against all expense, including costs of litigation and reasonable attorney's fees incurred in
investigating, resisting, or compromising any claim asserted with respect to any of the foregoing. Lessee shall not use the premises
for any purpose which shall conflict with uses being made by other tenants of other portions of the property in which the premises are
located except with the prior written consent of Lessor.
In the event of roof leakage, the Lessee shall promptly notify the Lessor in writing thereof and Lessor shall have thirty (30)days
after such notice in which to eliminate said leakage. If Lessor does not perform its obligations within the time limits of this
paragraph, Lessee may perform the obligations and have the right to be reimbursed for the sum it actually expends in the performance
of Lessor's obligations, which sum shall not exceed the reasonable cost of such repairs, so long as the leakage was due solely as a
result of the failure of the Lessor to maintain the roof in good condition and repair. In all other circumstances, such repairs shall be
paid for by the Lessee. Lessee shall have no right to withhold from future rent due the sum Lessee has expended for such repairs.In no
event shall Lessor be liable to Lessee's agents, customer's, employees, or any other person for any damage arising from said roof
leakage, including, but not limited to, property damage, loss of business, consequential damages, or any other damages whatsoever.
Lessee expressly waives any and all claims and releases Lessor from any such damage. No merchandise shall be sold or displayed in
any areas outside of or adjacent to the leased store room, nor in or about premises by means of a barker, radio or any other musical or
noise-making instrument.
Lessee may use in common with the other tenants of the building in which the leased premises are located any parking space made
available by the Lessor to the tenants of said building.
It is agreed upon the part of the Lessee that no Lessee, agent or employee of Lessee shall park any automobile or vehicle of any
kind upon the portion of the said parking area which is designated as customer parking between the hours of nine o'clock in the
morning and nine o'clock in the evening of any day, and Lessee agrees to prevent a violation of this covenant by terminating the
employment of the employees or agent who persists in violating the same.
4. COMPLIANCE WITH LAWS. Lessee shall comply with all federal, state, municipal and local laws, rules, regulations,
statutes and ordinances concerning the premises, including, without limitation, the obligation, at Lessee's sole cost and expense, to
alter, restore, rebuild, modify, maintain, improve, repair or remove all or any portion of the premises in compliance and conformity
with all federal, stale, municipal or local laws, rules, statutes, regulations and ordinances, now in effect or which may hereafter come
into effect and whether or not reflecting a change in policy, laws or rules from any preexisting policy, laws or rules, relating to the
condition, use or occupancy of the premises and whether or not the costs of bringing the premises into compliance with said policy,
laws or rules represent a substantial fraction of the aggregate rent reserved over[be life of the Lease and whether or not such costs arise
out of defects or conditions which were hidden or unforeseeable at the time that the parties entered into the Lease. If Lessor is required
to alter, maintain, remove, restore, repair or improve any portion of the building, common areas, or facilities of which the premises
are a part, or in which the premises are located, Lessee shall pay to Lessor, on demand, Lessee's pro rats share of said costs.Lessee's
share of such costs shall be based on the total number of square feet in the premises that bear to the total number of leasable square feet
in the building, common areas or facilities of which the premises are a part or in which the premises are located. In complying with all
laws, ordinances and regulations now in force or hereafter adopted, which affect the use or ability to use the premises including the use
of said premises by handicapped or disabled persons, Lessee shall have the obligation, at Lessee's sole cost and expense to alter,
maintain, or restore the premises in compliance and conformity with all laws relating to such condition, or use. Lessee's obligations
hereunder shall not be limited to compliance with laws, ordinances or other governmental demands regulating Lessee's use of the
premises nor by the relationship of the cost of the curative or compliance action to the rent reserved, nor to the remainder of the term
or the original term for which the Lease was made, nor to the relationship to the benefit to the Lessee to that of the Lessor, nor to
whether the curative action is structural or non structural in nature, nor to the duty to which the Lessee's enjoyment of the premises
will be interfered with while the curative action is being undertaken, nor whether or not the Lessor and Lessee contemplated the
application of the particular law or order involved to the premises or the Lessee's use of the premises.
5. FURTHER INDEMNITY AND LIABILITY OF LESSOR. In addition to the provisions of paragraphs 3 and 32,
Lessor shall not be liable for any injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's
employees, contractors, invitees, customers, or any other person in or about the premises,whether such damage or injury is caused by
or results from fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, fire
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sprinklers, wires, appliances, plumbing,(I)conditioning or lighting fixtures, or from afrIer cause whether the said injury or
damage results from conditions arising upon the premises or upon other portions of the building of which the premises are a part, or
from other sources or places and regardless whether the cause of such damage or injury or the means of repairing the same is accessible
or not.Lessor shall not be liable from any damages arising from act or neglect of any other tenant of Lessor.Notwithstanding Lessor's
negligence or breach of this Lease, Lessor shall under no circumstances be liable for injury to Lessee's business, for any loss of
income or profit therefrom, or for any compensatory or consequential damages that may arise from such negligence or breach.
6. PUBLIC UTILITY CHARGES. In addition to the rent herein reserved, Lessee agrees to pay before delinquency all
charges for public utilities, (TUMF)Transportation Uniform Mitigation Fees, and all other similar charges which accrue with respect
to the demised premises during the term of this lease, whether they are charged or assessed at Bat rates, measured by separate meters, or
prorated.
7. SECURITY DEPOSIT. Lessee has, contemporaneously with the execution of this lease, deposited with Lessor the sum
of(see paragraph 2), receipt of which is hereby acknowledged by Lessor. Said stun shall be held by Lessor as security for the faithful
performance by Lessee of certain terms,covenants and conditions of said lease by said Lessee to be kept and performed during the term
hereof.If at any time during the term of this lease any of the rent herein reserved shall be overdue and unpaid, or any other sum payable
by Lessee to Lessor hereunder shall be overdue and unpaid, or in the event of the failure of Lessee to repair damages to the demised
premises caused by Lessee, then Lessor may, at the option of Lessor (but Lessor shall not be required to) appropriate and apply any
portion of said security deposit to the payment of any such overdue rent or other sum for the cost of the repair of the damage to the
demised premises caused by Lessee. In the event of the failure of Lessee to keep the demised premises in a good, clean, safe and
wholesome condition, so that it becomes necessary for Lessor to clean said premises upon the termination of this lease, then at the
option of Lessor, and Lessor may, after the termination of this lease, appropriate and apply said entire security deposit, or so much
thereof as may be necessary, to clean said premises. Should the entire security deposit, or any portion thereof, be appropriated and
applied by Lessor for the payment of overdue rent or other sums due and payable to Lessor by Lessee hereunder, then Lessee shall,
upon the written demand of Lessor, forthwith remit to Lessor a sufficient amount in cash to restore said security deposit to the original
sum, and Lessee's failure to do so within five(5) days after receipt of such demand shall constitute a breach of this lease.Lessor shall,
after expiration m early termination of the term hereof and after Lessee has vacated the premises and Lessor has received possession of
the premises, return to Lessee (or, at Lessor's option, to the last assignee, if any, of Lessee's interest herein), that portion of the
security deposit not used or applied by Lessor for defaults in the payment of rent or for amounts reasonably necessary to repair damages
to the premises caused by the Lessee, or to clean the premises, at such times required by law. Lessor can commingle the security
deposit with Lessor's general and other funds. Lessor shall not be required to pay Lessee interest on the security deposit. Lessee's
obligations with respect to the security deposit are those of a debtor and not a trustee.
8. MEANING OF TERMS. As used in this lease, the terms "Lessor", "Lessee", and all other terms'used in the singular
number shall apply when necessary to the plural number. If"Lessee" consists of more than one person, the obligations of"Lessee"
shall be the joint and several obligations of such persons.
9. LESSEE'S INSPECTION AND ACCEPTANCE OF PREMISES. Lessee acknowledges that it has inspected the
premises, have found them to be in a reasonably safe condition and in good repair, accepts the same "AS-IS" and assumes all
responsibility therefor, at Lessee's sole cost and expense and agrees to hold Lessor free and harmless therefrom and that no statements
or representations not expressed herein as to the condition of or repair to the premises, presently existing or hereafter arising, or of any
building of which the premises are a part have been made by on behalf of Lessor. Lessor shall not be called upon or required at any
time to make any improvements, alterations, changes, additions,repairs or replacements of any nature whatsoever in or to the premises
or any building of which they are a part. Lessee expressly waives any right to require Lessor to make repairs,or to make repairs at the
cost of Lessor, which Lessee might have under the provisions of Sections 1941 and 1942 of the Civil Code of the State of California.
Lessor shall not be liable to Lessee or any other person for or on account of any injury or damage of any kind whatsoever to persons or
property occasioned in or about the premises or wheresoever arising, or resulting from the patent or latent defect, structural or
otherwise in the construction,condition, or present or future lack of repair of the premises or of the building, the wiring, equipment or
apparatus therein or thereof, the plumbing, gas, water, steam or other pipes or sewerage, or the use, misuse or disuse of the premises
or the building or any part thereof or of any equipment [herein or apparatus thereof by any other tenant or occupant, or by or from any
act, omission or neglect of any such other tenant or occupant, or by or from any act of owners or occupants of adjoining or contiguous
properties. Lessee indemnifies Lessor against and agrees to hold Lessor harmless from any loss, damage, claim of damage, liability, or
expense, arising out of or resulting from any of the matters or things hereinbefore specified, and from and against any damage or
liability arising from any injury or damage or claim of injury or damage of any kind whatsoever to persons or property occasioned in
or about the premises during the term hereof and due directly or indirectly to the use, misuse or disuse by Lessee or by any person or
persons holding under or using the premises by license of Lessee or to the condition of the demised premises or any part thereof or any
appurtenances or equipment thereof or therein, or arising out of any failure of Lessee in any respect to comply with any of the
requirements or provisions of this lease, and from and against any expense, including costs of litigation and reasonable attorneys' fees,
incurred in investigating,resisting, or compromising any claim asserted with respect to any of the foregoing.
10, COVENANTS AGAINST ASSIGNMENT AND SUBLETTING. Lessee covenants not to sublet the premises or
any part thereof,and not to transfer, assign, hypothecate or encumber this lease or any part thereof or any right or interest therein or to
license any other person to use the premises or any part thereof without first obtaining the written consent of Lessor, which consent
shall not be unreasonably withheld. No corporation, firm or person, other than Lessee shall have the right to occupy the premises or
any part thereof by virtue of any transfer or assignment or by virtue of any bankruptcy or insolvency or reorganization proceeding or
any receivership or other legal process, either under attachment, execution or otherwise, or in any manner whatsoever growing out of
any proceeding or suit in law or in equity. In the event of any such proceeding being had or taken by or against Lessee or any assignee
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or successor in interest of Lessee or against ahy interest of Lessee or of any assignee or suc`cos'sor in interest of Lessee in this lease or
in the demised premises or in the contents thereof, unless such proceeding is dismissed or such levies released within five (5) days
therefrom, Lessor shall have the option of terminating this lease immediately. No assignment whatsoever at any time of this lease or
of any right or interest therein, whether voluntary or involuntary, by death, bankruptcy, operation of law, winding up of any
corporation, order of any probate court, or otherwise, shall be effective or valid without the consent in writing of Lessor first had and
obtained, and then only upon condition that the assignee or other successor in interest agrees in writing, expressly for the use and
benefit of Lessor, to carry out and observe each of Lessee's agreements under this lease. In the event of an assignment or subletting by
Lessee or by any assignee or other successor in interest, neither Lessee nor any assignee or other successor in interest shall be released
from any liability hereunder; and in [he event of default by any such assignee or successor or by any succeeding assignee or successor
in the performance of any term hereof no notice of such default or demand of any kind need be served or made on Lessee or on any such
successor in interest or assignee to hold them or any of them liable to Lessor.If this lease is assigned as aforesaid or if the premises or
any part thereof are subleased, Lessor may consent to subsequent assignments or subleases or may extend the time for the payment of
any installment of rent or for the performance of any other obligation of Lessee without notifying Lessee or any assignee or successor
in interest of Lessee of such assignment, sublease, or consent and without obtaining the consent of them or any of them thereto. Any
transfer, assignment, or sublease, purported to be made otherwise than in strict accordance with the provisions of this lease shall be
voidable at the option of Lessor, and any attempt to make any such transfer, assignment or sublease by Lessee or by any successor in
interest of Lessee shall be a breach of the conditions of this lease. The granting of consent by Lessor to any assignment, sublease,
hypothecation, or encumbrance, shall not be construed as a waiver of any of the conditions herein contained concerning or restricting
assignments, subleases, hypothecations, or encumbrances, or as authorizing any subsequent transaction without the prior written
consent of Lessor. All subleases made by Lessee or any person claiming under or through Lessee pursuant to the provisions of this
lease shall contain the same provisions as those contained in this lease as to restrictions on the use of the premises and requiring the
consent of Lessor herein to any assignment or sublease. In exercising its judgment whether or not to grant consent to a transfer,
assignment, hypothecation,encumbering this lease or subletting the premises, Lessor shall have the right to consider each or all of the
following: (a) the use to be made of the premises by the transferee; (b) the financial condition and ability of the transferee to pay rent
and perform the other covenants of the Lease; (c)the potential competition of the transferee with existing tenants;(d) as a condition to
the granting of said consent,that all rent, or other consideration to be paid by the transferee to the existing Lessee are to be paid to the
Lessor, as additional rent; (e) that the Lessor shall have the right to adjust the existing rent and/or the security deposit for the premises
to the then fair market rental value thereof; and (f) Lessee shall pay to Lessor all of Lessor's attorney's fees and costs incurred in
determining whether or not to grant its consent to the transfer.
11. LESSEE TO MAKE REPAIRS. Lessee agrees at Lessee's own expense to keep the demised premises and each part
thereof, including the plumbing, in good condition and repair at all times during the term hereof and to make promptly all repairs,
renewals and replacements which at any time are necessary or proper to put and keep the premises in as good condition as that in which
they were received by Lessee from Lessor, reasonable wear and tear and damage by fire, earthquake or other sudden violent action of the
elements or other casualty excepted, to replace immediately all glass now or hereafter installed in the demised premises with other glass
of the same quality, and to keep the premises and all their appurtenances in a good, clean, safe and wholesome condition at all times
during the term, except as to the maintenance and repair of the air conditioning equipment in the premises (see paragraph 2 of this
lease).
12. SURRENDER ON TERMINATION OF LEASE. Lessee covenants to surrender and deliver up the demised premises
to Lessor immediately upon the termination of this lease, whether by the expiration of time or otherwise, in as good condition as that
in which they were received by Lessee from Lessor, reasonable wear and tear and damage by fire, earthquake or other sudden violent
action of the elements or other casualty excepted. If without Lessor's consent Lessee or any other person claiming for, through or
under Lessee holds the premises for any time after they should have been surrendered under the provisions of this lease, he shall be
deemed guilty of unlawful detainer of[he demised premises and shall be subject to eviction and removal, with or without process of
law. If Lessee with Lessor's consent,remains in possession of the premises after expiration or termination of the term, or after the date
in any notice given by Lessor to Lessee terminating this Lease, such possession by tenant shall be deemed to be a month-to-month
tenancy, terminable on thirty (30) days' notice given at any time by either party. During any such month-to-month tenancy, Lessee
shall pay all rent required by this Lease, which rent and/or security deposit shall be subject to adjustment by Lessor giving to Lessor
written notice of such adjustment effective on thirty (30) days' notice given at anytime by Lessor. All provisions of this Lease, except
those pertaining to tern shall apply to the month-to-month tenancy. Rent shall be payable to the date of termination.
13. ALTERATIONS AND ADDITIONS. Lessee agrees not to make any additions to or changes or improvements in or to
the demised premises or any part thereof without the prior written consent of Lessor except those changes, additions and
improvements, if any, which Lessee is required to make by the provisions of this lease. Any alterations, additions or improvements
which are made in or to the premises shall be surrendered with the premises upon the termination of this lease unless, prior to such
termination,Lessor gives Lessee written notice to remove some or all thereof,in which case Lessee shall cause the items so designated
to be removed and the premises to be restored to their original condition in a manner satisfactory to Lessor, all at the expense of
Lessee. If during the term any additions, alterations or improvements in or to the demised premises, as distinguished from repairs, are
required by any governmental authority or under any law, ordinance or governmental regulation, they shall be made and paid for by
Lessee.
14. TRADE FIXTURES. Not later than the expiration of the time within which, under any provisions of this lease, Lessee is
required to surrender possession of the demised premises to Lessor,Lessee may and if prior to the expiration of such time Lessor gives
written notice requiring Lessee to do so Lessee shall remove any trade fixtures installed in the demised premises by Lessee. All trade
fixtures not removed within such time shall become and remain the property of Lessor. The removal of such trade fixtures shall be
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effected solely at the expense of Lessee anbih a manner satisfactory to Lessor, and without , ury or damage to the demised premises
or the building, and Lessee covenants to repair immediately, at Lessee's expense, any injury or damage caused by such removal.
15. TAXES TO BE PAID BY LESSEE. Lessee shall pay to Lessor, within ten (10) days after written request therefore, an
amount equal to such taxes or assessments as at any time during the term are assessed or become a lien against Lessor or the real
properly of which the demised premises are a part by reason of the presence in or the installation on or attachment to the premises of
any improvements, fixtures, alterations, additions, or other property by Lessee or by any other person occupying or using any part of
the premises under or through Lessee.
16. DAMAGE BY CASUALTY. Should the demised premises be damaged or destroyed in whole or in part at any time
during the tern of this Lease to the extent of 50% or more of the replacement value thereof,Lessor shall have an option at any time
within sixty (60)days after the happening of such casualty to terminate this Lease as of the date of the happening of such casualty.
Should the demised premises be damaged as the result of such casualty to the extent of less than 50% of the replacement value thereof,
Lessor shall proceed with reasonable diligence to restore the demised premises to substantially the condition as that in which they were
immediately prior to the happening of the casualty and in no event shall Lessor be liable to Lessee for any damage resulting from the
happening of such casualty or from the work of repair or reconstruction nor shall Lessee be released from any obligations under this
Lease,except that Lessee shall be entitled to a reasonable suspension or diminution of the rent otherwise payable hereunder during the
time required for restoration and repair according to the portion of the demised premises rendered untenantable.If,during the term, the
premises or the building and other improvements in which the premises are located are damaged as a result of a casualty to the extent
of less than 50% of the replacement value thereof from a risk not covered by insurance,rendering the premises inaccessible or unusable
to Lessee, Lessor shall have the option to restore the premises or the building and other improvements in which the premises are
located to substantially the same condition as they were in immediately before such destruction. If Lessor elects to restore the premises
or the building and other improvements, this Lease shall not terminate. If Lessor elects, at its sole option and discretion, not to restore
the premises or the building and other improvements in which the premises are located, and gives lessee notice thereof within thirty
(30)days after the casualty,either party can terminate this Lease immediately by giving notice to the other party.
17. LESSOR'S RIGHT OF ACCESS. At all times during the tern Lessee shall allow Lessor free access to the demised
premises and each part thereof for purposes of inspection and for the purpose of making such repairs, changes, alterations, additions or
improvements in or to the premises or the building as Lessor sees fit to make, and for the purpose of serving or posting and keeping
posted thereon notices provided by Section 3094 of the Civil Code of the State of California or by any other law of that state or which
Lessor deems to be for the protection of Lessor or the property. For the purpose of making alterations, changes, repairs, additions or
improvements as aforesaid, Lessor may erect scaffolding and other necessary or proper structures.No exercise by Lessor of any rights
herein reserved shall entitle Lessee to damages for any injury or inconvenience occasioned thereby nor shall Lessee by reason thereof be
entitled to any abatement in rent, but any such work shall be done in such manner as to cause Lessee the least inconvenience
practicable.
18. SIGNS. No signs or other advertising matter shall be placed, installed or maintained in or about the demised premises
except with the written consent of Lessor. The installation and maintenance by Lessee of any signs or other advertising matter shall be
in strict compliance at all limes with the laws, ordinances and regulations then in effect and applicable thereto. Prior to the termination
of this lease,Lessee, at the option of Lessor, but at the expense of Lessee, shall remove all such signs and other advertising matter in
a manner satisfactory to Lessor. Lessor hereby expressly reserves the right to use the roof and exteriors of the walls of the building for
advertising and other purposes, and Lessee shall be entitled to no rights to use the roof or exteriors of the walls.
19. INDEMNITY AGAINST LIENS. Lessee agrees to pay promptly for all labor done or materials furnished for any work
of repair, maintenance, improvement, alteration or addition done by Lessee in connection with said premises and to keep and hold the
premises free, clear and harmless of and from all liens that could arise by reason of any such work. In the event that any mechanic's
lien is recorded against the premises or the building in which the premises is located as a result of any work done by Lessee in
connection with said premises, Lessee shall cause said mechanic's lien to be removed within thirty(30)days after the recording thereof
or, if Lessee desires to contest the correctness or the validity of any such lien, Lessee shall procure and record a mechanic's lien release
bond in form and amount in compliance with Civil Code §3143 and shall provide for the payment of any sum that the claimant may
recover on the claim (together with costs of suit, if it recovers in the action).
20. LESSOR MAY ACT IF LESSEE FAILS TO DO SO. If at any time during the term hereof Lessee fails, refuses or
neglects to do any of the things herein provided to be done by Lessee, Lessor shall have the right but not the obligation to do the
same, but at the cost and for the account of Lessee. The amount of any money so expended or obligations so incurred by Lessor,
together with interest thereon at the rate of ten percent(10%)per annum, shall be repaid to Lessor forthwith upon demand therefor, and
unless so paid shall be added to the next rent payment coming due hereunder and shall be payable as rent.
21. LESSOR'S, RIGHTS UPON DEFAULT. If Lessee defaults in the payment of any money'to'Less6r, including, but
not limited to, rent, taxes, insurance premiums, advances made by Lessor on Lessee's behalf or any other monies due or payable to
Lessor, all of which shall be deemed to be additional rent, or if at any time Lessee defaults in the performance of any other obligations
of Lessee as provided in this Lease ("Events of Default") and if any such Events of Default continues more than three (3)days after
written notice thereof to Lessee, or if Lessee abandons the demised premises at any time during the tern of this Lease,Lessor may, at
Lessor's option and without limiting Lessor in the exercise of any other right or remedy Lessor may have on account of such Events
of Default and without further demand or notice, terminate this Lease, re-enter the premises, with or without process of law, and
remove all persons therefrom, and Lessor shall thereupon be entitled to recover from Lessee the aggregate of.
(a) The worth at the time of award of the unpaid rent and charges equivalent to rent earned as of the date of termination thereof;
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(b) The worth at the time of award of th'e amount by which the unpaid rent and charges eq`v Vent to rent which would have been
earned after the date of termination hereof until the time of award exceeds the amount of such rental loss that Lessee proves
could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the unpaid rent and charges equivalent to rent for the balance of the
term hereof after the tune of award exceeds the amount of such rental loss that Lessee proves could have been reasonably
avoided;
(d) Any other amount necessary to compensate Lessor for the detriment proximately caused by Lessee's failure to perform its
obligations under this lease or which in the ordinary course of[lungs would be likely to result therefrom; and
(e) Any other amount which Lessor may by law hereafter be permitted to recover from Lessee by reason of Lessee's default.
For the purposes of this paragraph 21, the "time of award"shall mean the date upon which the judgment in any action brought by
Lessor against Lessee by reason of such default is entered or such earlier date as the court may determine. The "worth at the time of
award"of the amounts referred to in subparagraphs (a) and (b) above shall be computed by allowing interest at the rate of ten (10%)
percent per annum, and the "worth at the time of award" of the amount referred to in subparagraph (c) above shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent(1%).
Notwithstanding anything to the contrary set forth herein, Lessor's re-entry to perform acts of maintenance or preservation or in
connection with efforts to relet (lie demised premises or the appointment of a receiver upon Lessor's initiative to protect Lessor's
interest under this lease shall not terminate Lessee's right to possession of the demised premises and, until Lessor does elect to
terminate this lease and terminates Lessee's right to possession of the demised premises, this lease shall continue in full force and
effect and Lessor may enforce all of Lessor's right and remedies hereunder including, without limitation, the right to recover as it
becomes due hereunder all rent and other charges required to be paid by Lessee under the terms hereof.
Notwithstanding the foregoing, Lessor shall not have the right to re-enter the demised premises for any default, other than the
payment of money, if within said period of thirty (30)days Lessee commences to cure and proceeds with reasonable diligence to cure
the default.
22. EFFECT OF BANKRUPTCY AND OTHER PROCEEDINGS. If during the term of this lease: (a) a petition to
have Lessee adjudicated a bankrupt or a petition for reorganization or arrangement under any of the laws of the United States relating to
bankruptcy be filed by Lessee, or be filed against Lessee, and if so filed against Lessee not be dismissed within sixty (60) days from
the date of such filing; (b) the assets of Lessee or the business conducted by Lessee on the premises be assumed by any trustee or other
person pursuant to any judicial proceedings; (c) Tenant becomes insolvent or makes an assignment for the benefit of creditors; or(d)
any corporate Lessee or assignee or successor in interest of Lessee commences proceedings for winding up, the occurrence of any such
contingency shall, at Lessor's option, be deemed to constitute and shall be construed as a repudiation of the obligations of Lessee and a
breach of this lease.
23. INSURANCE. Lessee, at its sole cost and expense shall maintain public liability and property damage insurance with a
combined single liability limit of not less than $1,000,000.00 and property damage limits of not less than $500,000.00, insuring
against all liability of Lessee and its authorized representatives, employees, customers and patrons arising out of and in connection
with Lessee's use or occupancy of(he premises.All public liability insurance and properly damage insurance shall insure performance
by Lessee of the indemnity provisions of this Lease. Both parties shall be named as additional insureds and the policy shall contain
cross-liability endorsements. Not less frequently than each three years, if, in the opinion of Lessor's leader or of the insurance broker
retained by Lessor, the amount of public liability and property damage insurance coverage at that time is not adequate, Lessee shall
increase the insurance coverage as required by either Lessor's lender or Lessor's insurance broker. Lessee, at is sole cost and expense,
shall maintain on all personal property, tenant's improvements and alterations in, on, or about the premises, a policy of standard fire
and extended coverage insurance, with vandalism and malicious mischief endorsements, to the extent of at least one hundred percent
(100%0) of their full replacement value. The proceeds from any such policy shall be used by Lessee for Lire replacement of Lessee's
personal property or the restoration of Lessee's improvements or alterations. Should Lessee failure to procure and maintain all such
insurance required of Lessee, Lessor shall have(he right but not the obligation to procure such insurance and any monies so expended,
together with interest thereon at the rate of ten percent(10%)per annum shall be considered additional rent and shall be paid to Lessor
forthwith, upon demand therefor and unless paid shall be added to [lie next rent payment,due hereunder.Lessee shall supply Lessor,on
the commencement date of the term hereof, a copy of either the insurance policies or certificates of the insurance company issuing such
insurance and Lessee agrees that the insurance policies or certificates shall be in form acceptable to Lessor and shall not be cancelable
or altered unless Lessor has been given ten(10)days' prior written notice by the insurance company issuing such insurance.Lessor and
Lessee each agree to waive any right of subrogation which either of them may have against the other for loss of or damage to the
waiving party, to the extent permitted under applicable insurance policies, without payment of additional premium.
24. PREMISES NOT TO REMAIN VACANT. Lessee agrees not to permit the premises to remain vacant or unoccupied
for more than fifteen (15) consecutive days, except during and for the purpose of making such repairs or restoration as become
necessary under the provisions hereof.
25. ATTORNEY'S FEES IN CASE OF LITIGATION. In the event of any litigation between Lessor and Lessee to
enforce any of the provisions of this lease or any right of either party hereto, the unsuccessful party to such litigation agrees to pay to
the successful party all costs and expenses, including reasonable attorney's fees, incurred therein by the successful patty, all of which
shall be included in and as a par(of the judgement rendered in such litigation. Should Lessor,without fault on Lessor's part,be[Wade a
party to any litigation instituted by or against Lessee, or by or against any person holding under, or using the premises by license of
Lessee or for the foreclosure of any lien for labor or material furnished to or for Lessee or any such person, or otherwise arising out of
or resulting from any act or transaction of Lessee or of ally such person, Lessee covenants to pay to Lessor the amount of any
judgment rendered against Lessor or the demised premises or any part thereof and all cost and expenses,including reasonable attorney's
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fees,incurred by Lessor in or in conneedon`with such litigation.In addition to the award of a, ney's fees as provided in paragraph 25,
the prevailing party shall be entitled to its attorney's fees incurred in any post-judgment proceedings to enforce any judgment in
connection with this Lease.This provision is separate and several and shall provide the merger of this provision into any judgment.
26. LESSOR'S RIGHT TO SHOW PREMISES. Lessor reserves the right to show the demised premises at reasonable
times to prospective tenants or purchasers and during the last sixty (60)days of Lessee's tenancy to place and maintain in or upon said
premises in one or more conspicuous places signs indicating that the premises are for rent, or for sale, as the case may be.
27. LESSEE'S OBLIGATIONS ARE CONDITIONS. Each of Lessee's obligations under this lease is a condition, the
time of performance of each is of the essence of this agreement, and the strict performance of each shall be a condition precedent to the
right of Lessee to remain in possession of the premises or to have this lease continue in effect.
28. LESSOR'S RIGHTS ARE CUMULATIVE. The various rights, options, elections, powers and remedies of Lessor
contained in this lease shall be construed as cumulative, and no one of them as exclusive of any of the others or of any other right or
priority allowed by law.No waiver of any breach by Lessee of any term or condition of this lease shall be construed to be a waiver of
any preceding or succeeding breach of the same or any other term or condition.
29. NOTICES.All notices from Lessee to Lessor shall be made in writing to Lessor's office. All written notices or demands of
any kind which Lessor may be required or desires to serve on Lessee under the terms of this lease may be served upon Lessee (as an
alternative to personal service upon Lessee) by leaving a copy of such demand or notice addressed to Lessee at the demised premises,
whereupon service shall be deemed complete, or by mailing a copy thereof by certified or by registered mail,addressed to Lessee at the
demised premises. In case of service by mail it shall be deemed complete at the expiration of the second day after the date of mailing. If
"Lessee" consists of more than one person, personal service or any notice or demand of any kind by Lessor upon any one of said
persons shall be complete service upon all. When this Lease requires services of a notice, that notice shall replace, rather than
supplement any equivalent or similar statutory notice, including any notices required by Code of Civil Procedure §1161, or any similar
or successor statute. When a statute requires service of a notice in a particular manner, service of that notice (or a similar notice
required by this Lease)in the manner required by this paragraph 29,shall replace and satisfy the statutory service of notice procedures,
including those required by Code of Civil Procedure §1162 or any similar or successor statute.
30. CONSTRUCTION OF LANGUAGE. The language in all parts of this lease shall be construed simply, according to its
fair meaning,and not strictly for or against Lessor or Lessee.
31. EFFECT OF UNLAWFUL RETENTION OF PREMISES BY OTHERS. If the term of this lease is to begin at
a date subsequent to its date and if a person or persons other than Lessor is or are now in possession of the demised premises, and if
Lessor is unable to deliver possession of the demised premises to Lessee at the date specified for the commencement of the term
because of the retention of possession thereof by such person or persons without the consent of Lessor, the Lessor shall not be liable
to Lessee in damages or otherwise and this lease shall not terminate, but Lessee shall have no obligation to pay rent until possession
of the premises is delivered to Lessee.
32. NON-LIABILITY OF LESSOR. Notwithstanding any provision contained in this lease or in any present or future rule
or regulation of the building, Lessor shall not be in default and shall not be liable to Lessee or to any other person whomsoever for
damages or otherwise should Lessee be deprived in whole or in part of any service, including, without limiting the foregoing general
language, elevator or janitor service, public utilities and heat, or be interfered with or prevented in whole or in part from moving
goods, wares, merchandise, or other property into or out of the building or the premises or be otherwise interfered with or prevented in
whole or in part from operating the business of Lessee by reason of any act of God, fire, earthquake, casualty, or by any strike,
lockout, labor dispute, or labor controversy, whether or not Lessor is a party or Lessor's employees are parties thereto, or by any other
condition or cause other than the willful default of Lessor, whether or not such cause is of the same kind or class as any of those
expressly enumerated in this paragraph or whether it is of a different kind of cause.
33, SUBORDINATION AGREEMENT. Lessee enters into and accepts this lease and the leasehold interest and estate of
Lessee hereunder subject and subordinate to all mortgages or trust deeds wluch now or hereafter may exist or be executed upon or with
respect to the premises hereby demised, the real property on which the building is situated, the improvements at any time thereon, or
the reversionary estate hereunder,and as well any renewals or extensions of any such mortgages or trust deeds;and Lessee agrees,upon
demand therefor, to do all things and to execute, acknowledge and deliver all instruments that may be necessary,proper or convenient
to subordinate this lease and the leasehold interest and estate of Lessee hereunder to any such mortgage or trust deed and to the lien and
provisions thereof. Notwithstanding the foregoing, if Lessor transfers title to the premises to a mortgagee, trustee or beneficiary under
the deed of trust or mortgage, or to any purchaser or successor-in-interest thereto, then this Lease shall not terminate if Lessee is not in
default and Lessee shall attorn to the new owner as if a party to this Lease, notwithstanding any rule of law to the contrary or the
absence of privily,and the new owner agrees not to disturb the possession of the Lessee and provides the Lessee with a non-disturbance
and attomment agreement.
34. EMINENT DOMAIN. If the whole of the premises or so much thereof as to render the balance unusable by Lessee shall
be taken under power of eminent domain, this lease shall automatically terminate as of the date of such condemnation, or as of the date
possession is taken by the condemning authority, whichever is earlier. No award for any partial or entire taking shall be apportioned,
and Lessee hereby assigns to Lessor any award which may be made in such taking or condemnation, together with any and all rights of
Lessee now or hereafter arising in or to the same or any part thereof; provided,however, that nothing contained herein shall be deemed
to give Lessor any interest in or to require Lessee to assign to Lessor any award made to Lessee for the taking of personal property and
fixtures belonging to Lessee and removable by Lessee at the expiration of the term hereof as provided hereunder or for the interruption
of or damage to Lessee's business. In the event of a partial taking which does not result in termination of this lease, the rent shall be
apportioned according to the part of the premises remaining usable by Lessee.
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35. EFFECT OF PARAGRAPH OADINGS. The titles or headings of the vatidus paragraphs hereof are intended solely
for convenience of reference and are not intended and shall not be deemed for any purpose whatever to modify, explain, or place any
construction upon any of the provisions of this lease.
36. PARTIES BOUND. This lease shall be binding upon and inure to the benefit of, as the case may require, the parties
hereto and their respective heirs, executors, administrators,successors and assigns, subject at all times, nevertheless, to all agreements
and restrictions herein contained with respect to subleasing, assignment,or other transfer of Lessee's interest herein.
37. EMISSIONS: STORAGE, USE AND DISPOSAL OF MATTER.
(a) Emissions. Lessee shall not:
(i) Make, or permit to be made, any use of the premises, or any portion thereof, which emits, or permits the emission of
dust, sweepings, dirt, cinders, fumes or odors into the atmosphere, the ground or any body of water, whether natural or
artificial(including rivers,streams,lakes,ponds, dams,canals or flood control channels);
(ii) Discharge, leak or emit, or permit to be discharged, leaked or emitted, any liquid, solid or gaseous matter, or any
combination thereof, into the atmosphere, the ground or any body of water, which matter, as reasonably determined by
Lessor or any governmental entity, do, or say, pollute or contaminate the same, or is, or may become, radioactive or
does, or may, adversely affect(1)the health or safety of persons wherever located, whether on the premises or anywhere
else, (2) the condition, use or enjoyment of the premises or any other real or personal property, whether on the premises
or anywhere else, or(3) the premises or any of the improvements thereto or thereon including buildings, foundations,
pipes, utility lines,landscaping or parking areas;
(iii) Permit any vehicle on the premises to emit exhaust which is in violation of any governmental law, rule, regulation or
requirement
(iv) Create, or permit to be created, any sound pressure level which will interfere with the quiet enjoyment of any real
property adjacent to the premises, or which will create a nuisance or violate any governmental law, rule, regulation or
requirement;
(v) Transmit, receive, or permit to be transmitted or received, any electromagnetic, microwave or other radiation which is
harmful or hazardous to any person or property in, on or about the premises, or anywhere else, or which interferes with
the operation of any electrical, electronic, telephonic or other equipment wherever located, whether on the premises or
anywhere else;
(vi) Create, or permit to be created, any ground vibration that is discernible outside the premises; and
(vii) Produce, or permit to be produced, any intense glare, light or heat except within an enclosed or screened area and then
only in such manner that lire glare,light or heat shall not be discernible outside the premises.
(b) Storage,Use and Disposal of Hazardous Matter.
(i) Storage, Use and Disposal of Hazardous Matter. Notwithstanding any other provision of this Lease,Lessee shall not use,
store, dispose.of or permit to remain on the premises any solid, liquid or gaseous matter, or any combination thereof,
which is, or may become, radioactive or which, if discharged, leaked or emitted, or permitted to be discharged, leaked or
emitted into the atmosphere, the ground or any body of water, does or may (1) pollute or contaminate the same, or (2)
adversely affect(A) the health or safety of persons, whether on the premises or anywhere else, (B) the condition, use or
enjoyment of the premises or any other real or personal property, whether on the premises or anywhere else, or(C) the
premises or any of the improvements thereto or thereon.
(ii) Disclosure. At the commencement of this Lease and on January I of each year thereafter(each such date being hereafter
called "Disclosure Dates"), including January I of the year after the termination of this Lease, Lessee shall disclose to
Lessor the names and amounts of all solid, liquid or gaseous matter, or any combination thereof, which were stored,used
or disposed of on the premises, or which Lessee intends to store, use or dispose of on the premises, for the year prior to
and after each Disclosue Dale.The Matter to be identified in the disclosure shall be all matter reasonably considered to be
hazardous, toxic or radioactive, including all matter identified as hazardous, toxic or radioactive in Title 22 of the
California Administrative Code, Division 4, Chapter 30 ("Title 22") as they may be amended from time to time
(collectively "Toxic Materials").
(iii) Consent. Lessor, in its sole and absolute discretion, may consent to Lessee's storage or use, or both, of the matter
described above, provided that Lessee shall store such matter in leak proof containers and shall use such matter in
accordance with(1)the standards set forth in Paragraph(b) (i)above(Storage,Use and Disposal of Hazardous Matter), and
(2)all governmental requirements as set forth in Paragraph(d)below.
(c) Storage and Disposal of Other Matter.
(i) Refuse Disposal. Lessee shall not keep any trash, garbage, waste or other refuse on the premises except in sanitary
containers and shall regularly and frequently remove the same from the premises. Lessee shall keep all incinerators,
containers or other equipment used for the storage or disposal of such matter in a clean and sanitary condition.
(ii) Sewage Disposal. Lessee shall properly dispose of all sanitary sewage and shall not use the sewage disposal system (1)
for the disposal of anything except sanitary sewage, or (2) in the excess of the lesser of the amount (A) reasonably
contemplated by the uses permitted under this Lease, or(B)permitted by any governmental entity, Lessee shall keep the
sewage disposal system free of all obstructions and in good operating condition.
(iii) Disposal of Other Waste. Lessee shall properly dispose of all other waste or other matter stored, used or located on the
premises in accordance with the standards set forth in Paragraph(b) (i).
(d) Compliance with Law, Notwithstanding any other provision in this lease to the contrary, Lessee, at its sole cost, shall comply
with all laws, statutes, ordinances, regulations, rules and other governmental requirements (hereafter called "laws"), in
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performing or observing its obligatioh�under this Lease. In particular, Lessee shall-6omply with all laws relating to the
storage, use and disposal of Toxic Materials, hazardous or toxic matter, including Title 22. The provisions of this paragraph
shall not supersede, but shall be in addition to, any other provisions in this Lease which impose a higher standard of care or
duty by Lessee.
(e) Indemnification. Lessee shall defend (with attorneys approved in writing by Lessor),indemnify and hold Lessor and its agents
harmless front any loss, claim, liability or expense, including attorneys' fees and costs, arising out of or in connection with its
failure to observe or comply with the provisions of this Lease, and in particular, with this Article. Lessee shall further be solely
responsible for, and shall defend (with attorneys approved in writing by Lessor), and indemnify, and hold Lessor and its agents
harmless from and against all claims, costs and liabilities, including attorneys' fees and costs, arising out of or in connection
with the removal, clean-up and restoration work and materials necessary to return the premises and any other property of
whatever nature and wherever located to their condition existing prior to the appearance of the Toxic Materials on the premises
or use thereof by Lessee.Lessee's obligations hereunder shall survive the termination of this Lease.
d) Insurance. If Lessee does, or intends to, use any matter required to be disclosed to Lessor under Paragraph(b) (ii), Lessor shall
have the right to either purchase, or require Lessee to purchase,insurance with coverage of no less than Five Million and no/100
Dollars ($5,000,000.00) to insure that any contaminated, polluted or radioactive matter be removed from the premises and the
premises restored to a clean, neat, attractive, healthy and sanitary condition,Lessee shall pay for all such insurance immediately
upon receipt of a bill therefor and, at Lessor's request, shall provide satisfactory evidence of such coverage and of payment to
Lessor.
(g) Inspection. Lessor and its agents shall have the right, but not the duty, to inspect the premises at any time to determine whether
Lessee is complying with the tenors of this Lease. If Lessee is not in compliance with this Lease, Lessor shall have the right to
immediately enter upon the premises to remedy any pollution contamination or radioactivity caused by Lessee's failure to
comply, notwithstanding any other provision of this Lease. Lessor shall use its best efforts to minimize interference with
Lessee's business but shall not be liable for any interference caused thereby.
(h) Default. Any default under this Article shall be a material default enabling Lessor to exercise any of the remedies set forth in
this Lease.
(i) Inspection on Termination of the Lease. On the date of expiration of the term of the Lease or on termination thereof, if sooner,
in the event that Lessee has conducted any activities on the premises involving any hazardous substance or the use of any
storage tank, at the request of Lessor, Lessee shall cause to be conducted an inspection of the condition of the premises for
verifying compliance by Lessee with this Lease and all applicable laws and shall employ experts and/or consultants in
connection therewith and shall provide Lessor with a written report of the condition of the premises, at Lessee's cost and
expense.Lessee shall indemnify and hold harmless Lessor from the cost of conducting said inspection and obtaining said report.
In the event that said report discloses the existence of contamination, Lessee shall immediately commence, diligently perform
and complete all necessary and required remediation for the purpose of eliminating all such contamination and shall pay and hold
Lessor harmless from any expense incurred in performing such remediation and cleanup.
38. DAMAGE DUE TO EARTHQUAKE. The following provisions shall apply to any damage to the building or the
premises caused by an earthquake and its subsequent aftershocks ("Earthquake Damage"):
(a) Notice of Damage. In the event a party becomes aware of Earthquake Damage to the premises or building, such party shall give
prompt written and telephonic notice to die other party.
(b) Inspection: Lessor's Right to Limit Entry. Lessor shall request an inspection of the building and the premises by appropriate
governmental inspectors as soon as possible. If Lessor in good faith believes there is a risk of injuries to natural persons or
damage to property from entry into the building or premises prior to governmental inspection, Lessor may restrict entry into the
building or the premises by Lessee, its employees and contractors in a nondiscriminatory manner. Upon request, Lessor shall
consult with Lessee to determine if there are safe methods of entry into the building and premises in order to retrieve files, data in
computers and inventory,subject to any indemnities and waivers of liability which Lessor may reasonably require. The decision of
any appropriate governmental inspector regarding safe entry shall be binding on the parties unless subsequently amended or
revoked
(c) Preliminary Estimate of Damage. Within thirty (30) days after the initial occurrence of Earthquake Damage (the "Initial
Occurrence"), Lessor shall give Lessee its best preliminary estimate (the "Preliminary Estimate") of the cost of repairing the
Earthquake Damage,the time needed to complete such repairs and the limits of any insurance coverage Lessor reasonably believes
is applicable to the Earthquake Damage. As used throughout this paragraph 38, the cost of repairing Earthquake Damage shall
include only the cost of repairing damage which the Lessor is required to repair under Paragraph G below. If Lessor is unable to
submit such estimate within such 30-day period despite Lessor's commercially reasonable efforts, the Preliminary Estimate may
be submitted up to forty (40)days after the Initial Occurrence.
Together with the Preliminary Estimate, Lessor shall enclose reasonably detailed backup information justifying the
information contained in the Preliminary Estimate.
If the time contained in the Preliminary Estimate for the completion of the repairs is in excess of two hundred seventy (270)
days measured from the date of the Initial Occurrence, then either Lessor or Lessee shall have the right to terminate the Lease.
Lessor's exercise of such right will be contained in the Preliminary Estimate; if Lessor does not exercise such right,Lessee may
exercise such right by giving written notice to Lessor within fifteen (15) days after receipt of the Preliminary Estimate.
Notwithstanding the foregoing, Lessor shall not have the tight to terminate this Lease if it is not terminating all other leases in
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the project which it has a contractual n'gnl to terminate relating to premises which have sOf cred Earthquake Damage similar to the
Earthquake Damage to the premises.
The Preliminary Estimate shall not include any extra time or cost required to construct new, additional or upgraded
improvements to any portion of the project,except as may be required to meet building and other codes then in effect.
(d) Final Estimate. Within seventy five (75) days after the Initial Occurrence, Lessor shall give Lessee its best final estimate (the
"Final Estimate") of the cost of repairing the Earthquake Damage, the time needed to complete such repairs, and the limits of any
insurance coverage Lessor reasonably believes is applicable to the Earthquake Damage.
Together with the Final Estimate, Lessor shall enclose reasonably detailed backup information justifying the information
contained in the Final Estimate and any significant variations from the Preliminary Estimate.
If the time contained in the Final Estimate for completion of the repairs is in excess of two hundred seventy (270) days
measured from the date of the Initial Occurrence, then either Lessor or Lessee shall have the right to terminate the Lease. Lessor's
exercise of such right will be contained in the Final Estimate; if Lessor does not exercise such right, Lessee may exercise such
right by giving written notice to Lessor within fifteen (15) days after receipt of the Final Estimate. Notwithstanding the
foregoing, Lessor shall not have the right to terminate this Lease if it is not terminating all other leases in the project which it
has a contractual right to terminate relating to premises which have suffered Earthquake Damage similar to the Earthquake Damage
to the premises.
The Final Estimate shall not include any extra time required to construct new, additional or upgraded improvements to any
portion of the project,except as may be required to meet building and other codes then in effect.
If the cost to repair the Earthquake Damage contained in the Final Estimate is in excess of the sum of the amount of
insurance carried by Lessor which covers Earthquake Damage(excluding any deductible amount),then Lessor shall have the right
to terminate the Lease unless within fifteen(15)days after receipt of the Final Estimate Lessee(i) elects to pay such shortfall and
(h) either provides security for such obligation reasonably acceptable to Lessor or shows a financial net worth and liquidity
sufficient to reasonably satisfy Lessor.
(e) Right to Operate Temporary Facility. Lessor acknowledges that Lessee has an extremely strong interest in continuously
conducting its business from the project. Consequently, if there is Earthquake Damage to the project (whether or not there is
Earthquake Damage to the premises and whether or not the Lease is terminated), then:
(i) If the premises and common areas of the building are such that Lessee can reasonably continue to occupy the premises
under applicable governmental requirements, then Lessee shall be entitled to do so, so long as Lessee pays its rent based
upon is proportionate share of the space in the premises which remains occupied.
(ii) If the Earthquake Damage to the premises, exclusive parking and/or common areas renders the premises wholly or
partially unusable for the conduct of Lessee's business, then Lessee my locate at it sole cost and expense a trailer or other
temporary facility (the "Temporary Facility") at the project at a location reasonably approved by Lessor, for the conduct
of Lessee's business, without any rent obligation. Any location and use of such Temporary Facility shall be in
compliance with all applicable laws. The rent abatement to which Lessee is entitled for its inability to use all or a
portion of the premises shall not be affected by Lessee's use of such Temporary Facility.
(iii) Lessor shall use all commercially reasonable methods to allow Lessee to continue to use the premises or Temporary
Facility during the repair of any Earthquake Damage to the project, but the Lessee's continued occupancy and obligations
thereunder may be terminated by either Lessor or Lessee once Lessor commences reconstruction or demolition work
which materially interferes with Lessee's occupancy.
(f) Rent Abatement. Rent shall abate from the date of the Initial Occurrence until the date repairs of the Earthquake Damage to the
premises and all common areas reasonably serving the premises are completed, based on the proportion of the premises which are
rendered unusable for the conduct of Lessee's business by the Earthquake Damage.
(g) Diligent Prosecution of Repairs. In the event that the Lease is not terminated by a party having a right to terminate, Lessor shall
promptly commence and diligently prosecute to completion the repair of the Earthquake Damage to the premises and the common
areas reasonably serving the premises,provided Lessor shall not be obligated to repair any damage to Lessee's personal property or
fixtures or any tenant improvements made to the building shell Lessor shall not be liable for its failure to complete the repairs
within the time estimate set forth in the Final Estimate, unless Lessee demonstrates by a preponderance of evidence that
completion of the repairs has been delayed by more than thirty (30)days because of new, additional or upgraded improvements to
any portion of the project (except as required to comply with building and other codes then in effect), Lessor's failure to make
payments timely to contractors and/or design professionals or Lessor's failure to exercise reasonable diligence. Immediately after
completion of the repair work Lessor is obligated to perform, Lessee shall commence and diligently pursue to completion repair
and/or replacement of the tenant improvements to the premises. Any material modification of such tenant improvements shall
constitute an alteration requiring Lessor's consent pursuant to paragraph 13.
(h) Pass-Through of Insurance Deductible. If Lessor's insurance covers all or any portion of the Earthquake Damage, then the
deductible amount shall be amortized over the useful life of the repairs made,and the annual amount of such amortization shall be
included in the rent for the building.This provision shall supersede any conflicting provision in paragraph 16.
39. LATE CHARGES. Lessee acknowledges that late payment by Lessee to Lessor of rent and other sums due thereunder will
cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such
cost include, but are not limited to, processing and accounting charges and late charges which may be imposed upon Lessor by reason
of any ground lease, mortgage or trust deed covering the premises. If any installment of rent or other sum due from Lessee shall not be
received by Lessor or Lessor's designee within five days after such ammount shall be due, then, without any requirement for notice to
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Lessee,Lessee shall pay to Lessor a late cha e equal to ten percent(10%)of such overdue'atdount.The parties hereto agree that such
late charge represents a fair and reasonable estimate of the cost Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee's default or breach with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted hereunder. In addition, Lessee shall pay Lessor a $25.00
processing charge for each dishonored check presented to Lessor by Lessee.
40. INDUCEMENT RECAPTURE IN EVENT OF BREACH, Any agreement by Lessor for free or abated rent or other
charges applicable to the premises or for the giving or paying of Lessor to or for Lessee of any cash or other bonus, inducement or
consideration for Lessee's entering into this Lease, all of which concessions or hereinafter referred to as "Inducement Provisions",shall
be deemed conditional upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease to be
performed or observed by Lessee during the tern hereof as the same may be extended. Upon the occurrence of a breach of this Lease by
Lessee,any such Inducement Provisions shall automatically be deemed deleted from the Lease and of no force or effect and any rent or
other charge,bonus, inducement,or consideration tberetofor abated, given or paid by Lessor under such an Inducement Provision shall
be immediately due and payable by Lessee to Lessor and recoverable by Lessor as additional rent due under this Lease,notwithstanding
any subsequent cure of said breach by Lessee. The acceptance by Lessor of rent or the cure of the breach which initiated the operation
of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by
Lessor at the time of such acceptance.
41. TENANCY STATEMENT. Each party shall within ten (10) days after written notice from the other party execute,
acknowledge and deliver to the requesting party a statement in writing in form reasonably requested by the requesting party, such
additional information, confirmation or other statements as may be reasonably requested by the requesting party in the event that the
requesting party is engaged in a sale, financing, encumbering, or borrowing transaction in which the requesting party's interest in the
Lease or the premises may be of concern to a party in which the requesting party may be engaged in a transaction. If Lessor desires to
finance,refinance or sell the premises, any part thereof,or the building of which the premises are a part,Lessee and all guarantor's of
Lessee's performance hereunder shall deliver to any potential lender or purchaser designated by Lessor such financial statements of
Lessee and such guarantors as may be reasonably required by such lender or purchaser, including,but not limited to, Lessee's financial
statements for the past three years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence
and shall be used only for the purposes set forth herein.
42. TIME OF ESSENCE. Time is of the essence with respect to the performance of all obligations to be performed by the
parties under this Lease.
43. RENT DEFINED. All monetary obligations of the Lessee to Lessor under the terns of this Lease are deemed to be rent for
the purpose of any unlawful detainer or other proceedings.
44. NO PRIOR OR OTIIER AGREEMENTS. This Lease contains all agreements between the parties with respect to any
matter mentioned herein and no other prior or contemporaneous agreement or understanding shall be effective. This Lease shall be
considered integrated and all prior or contemporaneous agreements shall be considered to have been merged into this Lease and this
Lease shall supersede all other agreements by and between the parties hereto.
45. NON-WAIVER.No waiver by Lessor of the default or breach of any tern, covenant or condition hereof by Lessee shall be
deemed a waiver of any other term, covenant or condition hereof, or of a subsequent default or breach by Lessee of the same or of any
other tern, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to
enforce the provision or provisions of this Lease requiring such consent. Regardless of Lessor's knowledge of a default of breach at the
time of accepting rent, (lie acceptance of rent by Lessor shall not be a waiver of any preceding default or breach by Lessee of any
provision hereof, other than the default of Lessee to pay the particular rent so accepted. Any payment given Lessor by Lessee may be
accepted by Lessor on account of monies or damages due Lessor, notwithstanding any qualifying statements or conditions made by
Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically
agreed to in writing by Lessor at or before the time of deposit of such payment. Lessor's receipt of any payment from Lessee after
giving notice to Lessee terminating the Lease shall in no way reinstate, continue, or extend the Lease Term or affect the notice
terminating this Lease given by Lessor before the receipt of the payment. After serving notice terminating this Lease, filing an action,
or obtaining final judgment for possession of the premises, Lessor may receive and collect any rent or any monies or payments due,
and the payment thereof shall not waive or affect such prior notice, action, or judgment. This provision shall constitute that actual
notice of said non-waiver as required by Code of Civil Procedure §§1161.l(b) and 1161.1(c), as the same may be modified or amended
from time to time.
46. SECURITY MEASURES. Lessee hereby acknowledges that the rent payable to Lessor hereunder does not include the
cost of guard service or other security measures and that Lessor shall have no obligation whatsoever to provide same.Lessee assumes
all responsibility for tho protection of the premises,Lessee,its agents and invitees and their property from the acts of third parties.
47. PAYMENT OF RENT. The rent and other charges, as the same may be adjusted from time to time, to be received by
Lessor, shall be paid by Lessee in lawful money of the United States, without offset, deduction, defense or counterclaim of any nature
whatsoever.
48. USE OF PREMISES. Lessee shall use and occupy the premises only for the purposes set forth in paragraph 3 and for no
other purpose. Lessee shall not use or permit the use of the premises in a manner that creates waste or a nuisance or that disturbs
owners and other occupants of or causes damages to other tenants, neighboring premises or properties.
49. TRANSFER OF LESSOR'S INTEREST. Lessee acknowledges that Lessor has the right to transfer all or any portion
of its interest in the premises and in this Lease and Lessee agrees that in the event of such transfer and a transfer of the security deposit,
— 11 —
PL-97
Lessor shall automatically be released frot?.�(I liability under this Lease and Lessee agree'Olook solely to such transferee for the
performance of Lessor's obligations hereunder after the date of transfer.Lessee further acknowledges that Lessor shall assign its interest
in this Lease to a mortgage lender as additional security and agrees that any such assignment shall not release Lessor from its
obligations hereunder and that Lessee shall continue to look to Lessor for the performance of its obligations hereunder.
50. WAIVER OF TRIAL BY JURY. Lessor and Lessee hereby irrevocably waive their respective rights to a jury trial of
any claim or cause of action based on or arising out of this Lease or the premises. This waiver shall be applicable to all claims,
causes, causes of action or choses in action arising out of any and all claims, damages, cost, liens, expenses and/or liabilities arising
out of, involving,or in dealing with the occupancy of the premises by Lessee, the conduct of Lessee's business, any act, omission, or
neglect of Lessee or Lessor or its respective agents, contractors,employees or invitees.
51. OFFER.Preparation of this Lease by Lessor or Lessor's agent and submission of same to Lessee shall not be deemed an
offer to lease to Lessee.This Lease is not intended to be binding until executed by all parties hereto.
52. ADDITIONAL TERMS RELATING TO LESSOR'S DEFAULT. In no event shall Lessee have the right to
terminate this Lease as a result of Lessor's default, or breach. Lessee's remedies shall be limited to damages and/or injunction as
Lessee's exclusive remedies.
53. ADDENDA.Attached hereto is an addendum or addenda containing paragraphs 54 through 54, which constitute a part of
this Lease.
IN WITNESS WHEREOF,the parties hereto have executed this Lease.
LESSOR:
Plazq Investment Company, Inc.
By: itts, President
LESSEE:
T City of Palm Springs
City tferk Authorized Representative anager
APPROVED BY THE CITY COUNCIL
APPROVED AS TO PORN BY RES. NO,
A—orney—
late - — —11910111
—12—
PL-97
54.BOTHER PROVISIONS.
Lessor agrees that Lessee shall be sub(lea)sing the Premises to Riff Markowitz, President-of the Rifael Corporation as General
Partner for the Partnership For the Performing Arts, L.P. a California Limited Partnership who shall assume, perform and comply
with all,obligations of Lessee under this lease.
Lessee shall at Lessee's sole cost and expense remove the existing trash enclosure and relocate it so that it does not extend in an
easterly direction past the corner of the building immediately adjacent and to the South of the Alley, and will maintain said trash
enclosure clean and in good repah keeping any trash bins and trash inside the enclosure at all times. Lessor shall have a key to the
alley mid shall have the right of access to the alley at all times.
In addition to the provisions under this lease and the responsibility that Lessee has to make sure that any structure in the alley is
not a safety hazard, Lessee shall provide to Lessor annually on or before December 3 V of each year written certification from
Lessee that all structures and uses in the alley continue to meet required safety standards.
Lessee will not allow any portion of the premises, including the alley to be used for construction purposes including welding and
spray painting and will not allow any activity in the alley to disturb the occupants of any other premises.
Lessee shall keep the alley and the exterior walls of the structures surrounding the alley free from any attachment thereto and in
good repair, and keep the sidewalk area in front of the alley clear from any obstruction including equipment, cables, and trash.
Lessee shall keep the rooftop adjacent to the alley free from trash, debris, and repair any damage caused by Lessee or its agents
and will not allow items to be stored on the premises that will could create a hazard to neighboring buildings. For example,scenery
on top of the structure that could create a hazard to neighboring buildurgs in the event of fire
Notwithstanding any other provision in this lease, Lessee or its sublessee shall not be entitled to use any common area of Lessor's
premises or the parking thereon for the use of Lessee, sublessee or their customers.
Paragraph 24 entitled"Premises Not to Remain Vacant"shall be stricken from this lease.
Upon termination of this lease or any extension thereof, Lessee at Lessee's sole cost and expense, shall at the option of Lessor
remove and replace any portion or all of the alterations and improvements made by Lessee to the premises, and requested by
Lessor to be removed.
Contrary to any other provision in this lease,Lessee shall not have the option to transfer this lease.
Notwithstanding the provisions in Section 25 of this lease, Lessee agrees to pay any attorney's fees incurred by Lessor which are
necessary to enforce any term of this Agreement including any fees expended to obtain compliance by Lessee's sublessee,
provided that Lessor notifies Lessee in writing and allows Lessee 72 hours in which to cure said default or lack of compliance. For
the purposes of this section notification by fax shall be considered proper notification.
Under Section 29 of this lease tine notices to Lessee shall be made to Lessee at the following address:
David H.Ready,City Manager
City of Palm Springs
3200 E.Tahquitz Canyon Way
Palm Springs, CA 92264
Fax: (760)323-8207
Lessee shall have the unilateral right to terminate this lease in its sole discretion upon forty-five (45) days written notice to Lessor.
Any rent owed shall be prorated to such termination dale.
LESSOR:Plaza Investment Company,Inc. LESSEE: City of Palm Springs
BY:JaurcnRs,
�— C BY: �� 1
President avid H.Read , an
ATTEST:
Dated: �,2001 City Clerk,CITY OF PAL SPRINGS
APPROVED AS TO FORM: BURKE, WILLIAMS& SORENSEN,LLP
Dated: ,2001 By:
Attom r Palm Springs
EXHIBIT `B-I"
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 term, 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 1., the tern of the Lease, shall be revised as follows:
(a) The initial tern of this Sublease ("Initial Tenn") shall commence on June
1, 2003 ("Commencement Date") and shall terminated on May 31, 2004.
(b) Option Tern. 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
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
1003/005/23049 v8
EXHIBIT "B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
(c) 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
Term 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 unless Lessee cures such default with in 15
clays of giving the Option Notice. If Lessee is in default on the date the Extended Tenn
commences, the Extended Tenn shall automatically tenninate (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 (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 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 tenninate 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 Term, 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 effect the ability of
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 tenn 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
shall be transferred to the Cornnuni'ty Redevelopment Agency.
4. Authori . 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 v8
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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 full 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
sarne 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
APROVED AS TO FORM:
City Attorney
1003/005/23049 v8
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
7(»
DATED: IYlkfy , 2003 THE PLAZA INVESTMENT COMPANY
By:
vole SF not t:-XIzcNTv •=�
1}-( 1, t>>F Gam} t-
1003/005/23049 v8
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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 terns 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) hnitial Term. The initial teen of this Sublease (`Initial Tenn")
shall cominence on June 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 Terns," 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. Julie 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 v8
EXHIBIT`B-2"
TO AMENDED AND.RESTATED THEATER AND LEASE AGREEMENT
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 full 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
APROVED AS TO FORM:
City Attorney
1003/005/23049 v8
EXiHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
7�»
DATED: TYky 2003 THE PLAZA INVESTMENT COMPANY
By:?TW -
Vol';;, Sly iUOr r-Kacµ (v ,-r-�
43 T L IN CL Qti} IN R 17 l"m tt t—
°( In b/o>
1003/005/23049 vS
EXHIBIT `B-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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
hi 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 Properly 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 Arnendrnent 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. hicoMoration of Business Pronertv Lease Provisions. Sub-lessee hereby
agrees that all terms, 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 Tern. The initial term of this Sublease ("Initial Tenn")
shall commence on June 1, 2003 ("Cormnencement 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 Tern"), upon
the same terms and conditions herein:
1. Julie 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. Julie 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 A
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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 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 Term 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:
(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 (15ih) day following the commencement of the
Extended Term.
(h) The tennination 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 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.
3 Rent. Both parties agree that in addition to any other payments required of
the Sub-lessee pursuant to the terns of this agreement or the Business Property Lease
agreement, that notwithstanding the rent provision in the Business Property Lease, the
Sub-lessee agrees to pay Lessee as rent for the premises the rent amount from the
Business Property Lease less Two Hundred Dollars. Thereby for the entire tern of the
Lease, the Subleasee shall always make payments to the Lessee which is equal to Two
Hundred Dollars per month less than the amount owed by Lessee to the Landlord. There
shall be no security deposit for Sub-lessee. Rent payment for the Sub-lessee shall be due
at the City of Palm Springs, City offices, at 3200 E. Tahquitz Canyon Way, Palm
Springs, California 92264 on a monthly basis a minimum often(10) days in advance of
the first calendar day of each month during the term period. If any installment of Sub-
lessee's rent pursuant to this agreement or any other payment is not paid promptly when
due, or within five(5) days of the due date thereof, such installment and/or payment shall
bear an interest at the rate of ten percent (10%)per annum from the date when it became
1003/005/23049 A
EXHIBIT "13-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
due until paid,but this provision shall not be construed to relieve Lessee from any default
in making any payment at the time and in the mamier herein specified.
3. 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.
4. Limitation on Liability 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 right to the premises that cause darnage or injury to
property or person unless they are present as sub-lessee's agents, patrons, representatives,
employee's, guest, or volunteers.
5. Sub-lessee agrees that as supplementary and in addition to any
requirements under the Business Property Lease, the improvement of storage and
scaffolding to be built on the Premises, as further described in the Business Property
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.
6. Lessee shall provide Sub-lessee with any notices received from Lessor
under the Business Properly 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
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.
7. 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
1003/005/23049 v8
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
Aleshire&Wynder, LLP
18881 Von Kalman, Suite 400
Irvine, CA 92612
8. 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 committed 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
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 Terms. Any violation by the Sub-lessee of
any of the terns 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 honeys available
in the Fund:
(1) First Violation: Written Warning
(2) Second and Third Violations: Twenty-Five Dollars ($25 00)
(3) Fourth Violation: Fifty Dollars $50.00)
(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 terms of this Sublease,
then any aggrieved party may bring legal action to enforce the tenns 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.
1003/005/23049 A
EXHIBIT "B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
9. 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
tennination 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.
10 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.
11. 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, Sublessees, or vendees of the Premises or any
portion thereof.
12. 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.
13. 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
terms of this Agreement.
With the exception of the above noted revisions, all remaining terms 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 v8
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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]
1003/005/23049 v8
EXHIBIT "B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
EXHIBIT "A"
LEGAL DESCRIPTION OF ALLEY
Being a portion of Block 27 of Palm Springs, as shown by the
map on file in Book 9, Page 432, of MAPS, RECORDS OF
SAN DIEGO, CALIFORNIA, described as follows:
Commencing at a point on the west line of said Block 27 that
bears south 00006' east a distance of 114 feet from the
northwest corner thereof;
Thence north 89052' east and parallel with the north line of said
Block 27 a distance of 216.36 feet to the true Point of
Beginning;
Thence continuing north 89052' east and parallel with said north
line a distance of 74.38 feet, to point on thesaid east line of said
Block 27:
Thence south 00006' east along said east line a distance of
8.81 feet;
Thence south 89052' west and parallel with said north line a
distance of 53.72 feet;
Thence south 00006' east and parallel with said east line of
Block 27 a distance of 7.37 feet;
Thence south 89052' west and parallel with said north line20.67
feet to a point on the east wall of the Plaza Theatre Builidng;
Thence north 00006' west along said wall a distance of 16.18
feet to the true Point of Beginning.
A
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 property
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 A
EXHIBIT `B-2"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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 property commonly known as the
Courtyard located at Pahn 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-1" 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 terms 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
term 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 teen of this Lease for ingress and
egress, to and fi-om 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 tenn of this Sublease ("Initial Term") shall commence on June 1, 2003
("Commencement Date") and shall terminated on May 31, 2004.
a) Option Tenn. 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 A _1_
additional periods ("Extended Terns," individually"Extended Tenn"), 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. Jmie 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
Terns 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 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 Lessee's
receipt of notice from Lessee or the default; or
(2) The fifteenth (15`h) 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 further 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 term 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.
10031005/23049 A _2_
RENT.
Lessee shall pay to Lessor for the lease of the Site the sum of one dollar ($1.00) per year
("Armual Rent"), which sum shall be paid in advance on the Lease Cornrnencement Date and
each anniversaly 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 mamier 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. h1 the event that either prior to or during the Lease Tenn 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 teen 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 indenmify 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, fine 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 A _3_
their employees and customers, or arising from 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 perform any
tern, 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.
hi 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 right at its discretion to
repair, restore and rebuild such improvements on the same plan and design as existed
inunediately 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 perform 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 terminate the Trash Area Site usage at its discretion
upon ninety(90) days written notice to Lessee.
1003/005/23049 v8 -4-
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. In 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, constructed, 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 goverunental 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 terns, covenants, agreements,
restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of
the sarne 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 render 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 confirmed 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 v8 _5_
whom intended or mailed, by registered or certified mail, with postage prepaid, addressed to the
party for whom intended at the address that follows:
Lessor: Wessman Family Trust
c/o Wessman Development
1555 South Palm Canyon Drive, Suite G106
Palm Springs, CA 92264
Attn: Jolm Wessman Trustee
Lessee: Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263-2143
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 parry 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. hi 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 A -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 assignment, 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 term, 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
tenn, 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 v8 -7-
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
NOVEMBErR 16, 11998
y" ESSEEll
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Agency Attorney
[End of Signatures]
18990v1 .7_
EXHIBIT "A"
LEGAL DESCRIPTION OF COURTYARD
That portion of Block 27 of Palm Springs, as shown by Map
on file in Book 9 Page 433 of Maps, Records of San Diego
County, California described as follows:
BEGINNING AT A POINT on the West line of said Block 27,
distance South 00 degrees 08'00" East, 135.00 feet from the
Northwest corner of said Block 27;
Thence along said West line, South 00 degrees 08'00" East
24.20 feet;
Thence parallel with the North line of said Block 27, North 89
degrees 52'00" East, 62.12 feet;
Thence parallel with the Westerly line of said Block 27, North
00 degrees 08'00" West, 24.20 feet;
Thence parallel with the North line of said Block 27, South 89
degrees 52'00" West, 62.12 feet to THE POINT OF
BEGINNING.
A
EXHIBIT "A-1 "
LEGAL DESCRIPTION OF TRASH AREA SITE
A portion of the block designated as "Mrs. Brooks", also known
as Block 27 on map of the town of Palm Springs, in the City of
Palm Springs, County of Riverside, State of California, in Book
9, page 432 of Maps, San Diego County Records by metes
and bounds as follows:
Beginning at a point on northerly line of said Block 100 feet
easterly from northwesterly corner of said block; thence
southerly parallel with westerly line of said block 80 feet; thence
easterly parallel with northerly line of said block 10 feet; thence
northerly parallel with westerly line of said block 80 feet; thence
westerly along northerly line of said block ten feet to point of
beginning.
A-1
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RECORDED 10/28/98
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DELI BEARING RADIUS LENGTH TANGENT
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of pALM SA APPROVED BY:
CITY OF PALM SPRINGS
ENGINEERING DEPARTMENT
1FUd1�P DAMD J. BARAKIAN, P.E, — CITY ENGINEER
RCE 28931, EXP. 3/31/03
DESIGN BY: SCALE: FILE NO.:
MLF 1" = 20' R-00-14
ATTRACTION BOARD PARCEL 1
CHECKED BY-,, DWG, NO,: SHEET NO.:
DJB 1 1 OF 1
Pg. 1 of 2
Exhibit "B.1"
Attraction Board Parcel 1
ALL THAT PORTION OF BLOCK 27 AS SHOWN ON THE MAP OF PALM SPRINGS TOWN
SITE, RECORDED IN BOOK 9,PAGE 432,RECORDS OF SAN DIEGO COUNTY,CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING ATTHE SOUTHWEST CORNER OF PARCEL 3 AS DESCRIBED IN GRANT DEED
TO JOHN WESSMAN RECORDED OCTOBER 28, 1998, AS INSTRUMENT NO. 465160 IN
OFFICIAL RECORDS OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA;
THENCE NORTH 89'52'00"EAST,ALONG THE SOUTH LINE OF SAID.PARCEL 3,A DISTANCE
OF 6.92 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID SOUTH LINE, NORTH 89'52'00"EAST,A DISTANCE OF
1.50 FEET;
THENCE NORTH 59'29140" EAST, A DISTANCE OF 3.09 FEET;
THENCE NORTH 00'08'00"WEST, PARALLEL WITH THE WEST LINE OF SAID PARCEk 3,A
DISTANCE OF 1.21 FEET;
THENCE SOUTH 59'29'40" WEST, A DISTANCE OF 4.83 FEET;
THENCE SOUTH 00'08'00"EAST, PARALLEL WITH SAID WEST LINE, A DISTANCE OF 0.33
FEET TO THE TRUE POINT OF BEGINNING.
COMPRISING 4 SQUARE FEET MORE OR LESS.
EXHIBIT "B-2"
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PARCEL 3 PER INST. NO. 465160
36 RECORDED 10/28/98
SCALE 1" 20, g SEE DETAIL HEREON
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NOO'08'00"W. 16.50, PARCEL 2 PER INST. NO. 465160
RECORDED 10/28/98
N89'52'00"E 57.80'
BAR.{,1.i FY
N00'08'00'W, 16.50'
DELT BEARING RADIUS LENGTH TANGENT' N89'52'00"E, 4.32'
N89'62 00 E 46.42 No. C-28231
N59'29 40"E 2.00 6xp.03-31-03
S3O'3020 1.50 `rTgT 0IV1�
S59'29 40 4.00 P or
N30'30 20 1.50
NW201401 2.00 .
APPROVED BY:
z CITY OF PALM SPRINGS
ENGINEERING DEPARTMENTJ,f/o1
1 \r DAVID
28. BARMAN,
P.E.3 CITY E GINEER
RCEDESIGN BY: SCALE: FlLE NO.:
MLF 1" = 20' R-00-1'
ATTRACTION BOARD PARCEL 2
CHECKED BY. DWG. NO.: SHEET NO.:
DJB 1 1 OF 1
Exhibit "B-2"
Attraction Board Parcel 2
ALL THAT PORTION OF BLOCK 27 AS SHOWN ON THE MAP OF PALM SPRINGS TOWN
SITE, RECORDED IN BOOK 9,PAGE 432,RECORDS OF SAN DIEGO COUNTY,CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF PARCEL 3 AS DESCRIBED IN GRANT DEED
TO JOHN WESSMAN RECORDED OCTOBER 28, 1998, AS INSTRUMENT NO. 465160 IN
OFFICIAL RECORDS OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA;
THENCE NORTH 89'52-00"EAST,ALONG THE SOUTH LINE OF SAID PARCEL3,A DISTANCE
OF 46.42 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 59'29'40" EAST, A DISTANCE OF 2.00 FEET;.
THENCE SOUTH 30*30-20" EAST, A DISTANCE OF 1.50 FEET;
THENCE SOUTH 59'29'40" WEST, A DISTANCE OF 4.00 FEET;
THENCE NORTH 30'30'20"WEST, A DISTANCE OF 1.50 FEET;
THENCE NORTH 59'29-40" EAST, A DISTANCE OF 2.00 FEET TO THE TRUE POINT OF
BEGINNING.
COMPRISING 6 SQUARE FEET MORE OR LESS.
o�
EXHIBIT "B-3"
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SCALE: 1" = 4'
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N89'62'00"E 62.12'
2:n N
N
3 PARCEL 3 PER INST. NO. 465160
SCALE 1" 20' RECORDED 10/28/98
o
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z SEE DETAIL HEREON
6
NOO'08'00"W, 16.50' PARCEL 2 PER INST. NO. 465160
RECORDED 10/28/98 NOO'O6'00"W, 23.60'
N69'52'G0"E 57.60' : O -BM'
NOO'08'00"W, 16.50' OrJ� "W< �
T FJ�RINO RADIUS LENGTH TANGENT N89'5200'E, 4.32' * >E
N89'5200 E 11.08 No. C-2B931
N0.0'OB GO"W 0.67 Exp.0&31-03
N89'5200 E 10.50 `p1,7 CIV1V
SOO'OB 00 E 1.67 OF
S89'62 00 10.50 _
NOO'OB 00 1.00
of pµy APPROVED BY:
ti z CITY OF PALM SPRINGS
ENGINEERING DEPARTMENT
<IpnpA� * DAV 28. BA MANXP. 3%31/03 CITY ENGINEER
ROE DESIGN BY: SCALE FILE NO.:
MLF 1" = 20' R-00-14
ATTRACTION BOARD PARCEL 3
CHECKED BY: DWG. NO.: SHEET NO.:
DJB 1 1 OF 1
Exhibit "B-3"
Attraction Board Parcel 3
ALL THAT PORTION OF BLOCK 27 AS SHOWN ON THE MAP OF PALM SPRINGS TOWN
SITE, RECORDED IN BOOK 9, PAGE 432, RECORDS OF SAN DIEGO COUNTY,CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF PARCEL 3 AS DESCRIBED IN GRANT DEED
TO JOHN WESSMAN RECORDED OCTOBER 28, 1998, AS INSTRUMENT NO. 465160 IN
OFFICIAL RECORDS OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA;
THENCE NORTH 89052'00"EAST,ALONG THE SOUTH LINE OF SAID PARCEL3,A DISTANCE
OF 11.08 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 00008'00"WEST, PARALLEL WITH THE WEST LINE OF SAID PARCEL'$, A
DISTANCE OF 0.67 FEET;
THENCE NORTH 89'52'00"EAST,PARALLEL WITH SAID SOUTH LINE,A DISTANCE OF 10.50
FEET;
THENCE SOUTH 00'08'00" EAST, PARALLEL WITH SAID WEST LINE, A DISTANCE OF.1.67
FEET;
THENCE SOUTH 89-52'00" WEST, PARALLEL WITH SAID SOUTH LINE, A DISTANCE OF
10.50 FEET;
THENCE NORTH 00'08'00"WEST, PARALLEL WITH SAID WEST LINE,A DISTANCE OF 1.00
FEET TO THE TRUE POINT OF BEGINNING.
COMPRISING 18 SQUARE FEET MORE OR LESS.
QQ,OFE81f/p,
Alt e11P�ll.� �k
s,
EXHIBIT "13-4"
p�.
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ry^p�Gp. 4
N� o0 1
m �
b
b
DEM
Q' SCALE: 1" 4'
SCALE 1" = 20'
N89'52'00"E 62.12'
PARCEL 1 PER INST. NO. 465160
N00'08'00"W, 21.00' 4 RECORDED 10/28/98
SEE DETAIL HEREON T.P.O.B.
-- 6
Q� 1
�LOPESSKw,.
4S 0 DELI BEARING J. BAD RADIUS LENGTH TANGENT J Fi L
N89'5200"E 6,92
NDO'OB'00'W 2.50 �•`
N00'OB 00"W 1.25
589'52'00"W 4.00 * No. C-28931 #
S00'08 OO E 1.25 Fxp.03-31-03
N89'52 00 E 4.00 `P�,q 1�T C I V -
6PP
e � CpY1r"
04 pAly Sq APPROVED BY:
y CITY OF PALM SPRINGS
ENGINEERING DEPARTMENT _
DAVID J. BARMAN, P.E. - CITY ENGINEER
RCE 28931, EXP. 3/31/03
DESIGN BY: SCALE: FILE NO.:
MLF 1" = 20' R-00-14
PLAZA THEATER EASEMENT PARCEL l`f CHECKED BY: DWG. NO.: SHEET NO.:
DJB 1 1 OF 1
IIIII I�IIII 1111111111 IIII IIIIIII IIIII III IIIII IIII IIII 01 200 a a33ee�eeB
Exhibit "B.4"
Attraction Board Parcel 4
ALL THAT PORTION OF BLOCK 27 AS SHOWN ON THE MAP OF PALM SPRINGS TOWN
SITE, RECORDED IN BOOK 9,PAGE 432, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF PARCEL 1 AS DESCRIBED IN GRANT DEED
TO JOHN WESSMAN RECORDED OCTOBER 28, 1998, AS INSTRUMENT NO. 465160 IN
OFFICIAL RECORDS OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA;
THENCE NORTH 89'52'00"EAST,ALONG THE SOUTH LINE OF SAID PARCEL 1,A DISTANCE
OF 6.92 FEET;
THENCE NORTH 00'08'00"WEST, PARALLEL WITH THE WEST LINE OF SAID PARCEL:1,A
DISTANCE OF 2.50 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID LINE, NORTH 00'08'00" WEST, A DISTANCE OF 1.25
FEET;
THENCE SOUTH 69'52'00"WEST, PARALLEL WITH SAID SOUTH LINE,A DISTANCE OF 4.00
FEET;
THENCE SOUTH 00'08'00" EAST, PARALLEL WITH SAID WEST LINE,A DISTANCE OF 1.25
FEET;
THENCE NORTH 89'52'00" EAST, PARALLEL WITH SAID SOUTH LINE,A DISTANCE OF 4.00
FEET TO THE TRUE POINT OF BEGINNING,
COMPRISING 5.00 SQUARE FEET MORE OR LESS.
�., C28Y3
ti
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 v8 _8_
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
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 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 terns, 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. Term.
c) Initial Tenn. The initial tern of this Sublease ("Initial Term") shall
cormnence 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 Terms," individually "Extended Tern"), upon the same terms and
conditions herein:
1. October 1, 2004 through September 30, 2005
2. October 1, 2005 through September 30, 2006
3. October 1, 2006 through September 30, 2007
4. October 1, 2007 through September 30, 2008
5. October 1, 2008 through September 30, 2009
6. October 1, 2009 through September 30, 2010
7. October 1, 2010 through September 30, 2011
8. October 1, 2011 through September 30, 2012
9. October 1, 2012 through September 30, 2013
10. October 1, 2013 through September 30, 2014
11. October 1, 2014 through September 30, 2015
12. October 1, 2015 through September 30, 2016
1003/005/23049 A' EXHIBIT "C-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
13. October 1, 2016 through September 30, 2017
14. October 1, 2017 through September 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
Initial 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 Term 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 (15`h) day ,following the commencement of the Extended
Term.
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 term 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 Tern, unless Sublessee has
exercised all previous options to extend the tern 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
Pahn Springs, CA 92262
With a copy to Slovak Baron & Empey, LLP
1800 E. Tahquitz Carryon Way
Palm 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.
1003/005/23049 A 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
Colmnunity Redevelopment Agency of the
City of Palm Springs
3200 E. Tahquitz Canyon Way
Pahn Springs, CA 92264
1003/005/23049 A EXHIBIT `°C-1"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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 nalne 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, apublic 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 v8 EXHIBIT"C-I"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
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 Recorder's Office Use Only)
(Exempt Gram Recording Fee pea 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 Connnunity
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 further
definition and elaboration in the respective referenced sections and elsewhere in this Lease. In
the event of any conflict between any fundamental lease provision and the balance of this Lease,
the latter shall control. References to specific sections are for convenience only and designate
some of the sections where references to the particular fundamental lease provisions may appear.
g) Demised Premises or Property. The term "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 129 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-I."
Landlord shall deliver the Dermised Premises to Tenant and Tenant accepts the Dernised
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 Arnendrnent to Business Property Lease with Plaza Investment
Company, dated June_, 2003, attached hereto and incorporated herein as Exhibit "B" for
1003/005/23049 v8
EXHIBIT "D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
the property known as the Alley(the "Business Property Lease"). Landlord shall enter into a
Sublease with Tenant pursuant to Exhibit `B-1" transferring Landlord's interest to Tenant
(the "Business Property Sublease").
i) Courtyard Sublease. The Restated and Amended Courtyard Lease consisis 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-l" 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) Commencement Date: June 1, 2003
1) Initial Tenn: 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 Annual 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,
refreshinent stand, souvenir stand and for no other use or purpose. The term 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.
p) Address for Notices:
Landlord: Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 1786
Patin 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).
1003/005/23049 v8
EXHIBIT"D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
r) Security Deposit: $12,400.00 (See Arlicle 5g).
1003/005/23049 v8
EXHIBIT"D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
IN WITNESS WHEREOF, LESSOR and LESSEE have duly executed this
Memorandum 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 A
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 hand 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 sarne 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 A
EXHIBIT "D"
TO AMENDED AND RESTATED THEATER AND LEASE AGREEMENT
4r
d
�,.... .
� y
a,
1 . .
Proof of Publication
In Newspapers '
STATE OF CALIFORNIA
County of Riverside
Jacquelin K. Welch says:
1. 1 am a citizen of the United States, a
resident of the City of Desert Hot
Springs, County of Riverside, State of
California, and over the age of 18 years.
2. 1 am the Research & Production
Assistant of The Public Record, a
newspaper of general circulation printed NOTICE OF JOINT PUBLIC HEARING
and published in the City of Palm NOTICE IS HEREBY GIVEN that the City of Palm Spnngs and
- Springs, County of Riverside, -State of the Commi Rg°ovelopment Agency Of the City of Palm
Springs will hold a Joint Public Hearing in the Cry Council
California. Said The Public Record is a Chambers, located at 3200 Tahguilz Canyon way, Palm
Spnngs, California 92262, capturing at 7:00pm,
newspaper of general circulation as that WednesdayJuly 30,2003.to consitler the following:
term is defined m Government Code RestatedBette nthe Comm Theater Lease Agreement Agency and
Between The O dad They er Lease Ag ent ementy
section 6000, its status as such having of the City of Palm Springs and The Partnership for the
performing Arts,L.P.far the Plaza
been established by judicial decree of the Theatre facilities Iecared at 128 South Palm Canyon Drive
The Community RedevelopmentAgency of the City of
Superior Court of the State of Californian
Palm Springs currently has usa"Theater
Lease Agreement"with
and for the County of Riverside in The Partnership far the Performing Arts, LP for the Agency
991
Proceeding No. Indio 49271, dated andedendsrufDesalaza Theatre ber31,2006asaconstembes,1sO
and extends unlit Deeemberch o committees
aconsecutiveseriespl
March 31, 1987 entered in Judgment annual extension options This"Restaled and Amended Theater
Lease Agreement"would extend and amend this lease,again
Book No. 129, page 355, on March 31 , as a canseoarve sans of anneal extension pounds through
May 31,2018.The restated and amended lease includes the
1987. 10,111 square loot historic Plaza Theatre budding plus 1)a front
3. The Public Record is a newspaper of entrance Courtyard access easement from Palm Carryon Drive;
2)a Courtyard sublease which provides for lour(4)sign ease-
general circulation ascertained and ments within the entrance Counyord and use of a Trash Area
noun of the Theatre,and 3)sublease of an Alley behind the
established in the City of Palm Springs in Theaee redirecting to Indian Canyon Drive
All interested persons are invited to attend the Pubbc
the County of Riverside State of Hearing and express opinions on the item listed above If you
California, Case No. RIC 358286, Filed challenge the nature of the proposed action In Corm,yc0 may
June 8, 2001 . be limited to raising only those issues you or someone else
raised at the Public Hearing described in this notice,arm wrib
4. The notice of which the annexed is a led oendence delivered to the City Clerk,of the address
e above,
listed above,or prior too the the Public Hearing.
true printed copy, was published in the Members of the public may mew this sentiment and all
refrenced documents in the Community Redevelopment
newspaper on the following publication Department City Hall and submit written comments to the
dates t� wit: Community Redevelopment Agency at or prior to the
Community Redevelopment Agency Meeting at or prior to the
public hearing described in this nonce.
Further information including a copy of the Lease,
Summary Report,and Resolution,prepared in accordance with
July 2003 Health and Safety Code Sectlon 33433, is available in the
Otte.of the City Clerk at the above address.
July 15, 2003 AW.Patricia A.Sanders,City Clerk
I certify under penalty of perjury that the JulyQ16,2003
above is true and correct.
Dated at Palm Springs, California,
this 15th day of July 2003.
Jacquelin K. Welch
Research & Production Assistant
_ - (1) The rental or lease agreement eontams terms that are substantiallv egi ival nt t the term of
§ 33)23, public function rental or lease agreement available to any member of the general pubic for comparable p opertv in t
Notes of Decisions project area.
tal or inunieal to the public health,safety,or welfare,but (2) The rental or lease agreement includes a Rrovision Which prohibits any subletting sublease,
1. In general night consist of an"area"and,S.tms,to extent ordinance
read- °tier assignment at a rate m excess of the rate m the ongmz rental or lease agreement
Neighborhood preservation ordinance mandating a r rted to modify or amend redevelopment plan P (3) The ro
structure by structure determination of blight for par- P°rP° p perry which is subject to the rental or lease agreement is used in the pursuit of th
poses of demolition of buildings was in conflict with the ously adopted pursuant to community development law,it
State Community Redevelopment Law which provided would have W fail as an improper amendment to redevel- ppgtmpal busmess oecuDaII°n or profession of the officer or employee
that tin urban removal R project area need not be restricted opment plan. Kobus v. City of Berkeley (App. 1 Dist.
to buildings,improvements, t lands which are restricted
19777 135 Ca1.Rptr.700,67 Ca1App.3d 66fi. (4) The agency or community officer or emDlo ee who obtains the rental or lease agreemen
ti-imenimmewate]y makes a wntten d>sclosure of that fact to the ageneY and the legislative body.
E (Amended by Stats.1985,c.S7,§ 1.)
operative July 1,1983
§ 33124. Repealed by Stats.1982,c.497,p.2200,§ 124, p
Law Revision Commission Comment Historical and Statutory Notes
1982 Repeal 1985 Amendment Rewrote the first paragraph which agency and the legislative body which shall be entered m
ow read: their minutes. Failure to so disclose constitutes miscon
Former Section 33124 is not continued. Property of a § 695.u60; Gov't Code §from
a See also Cade al.L.R°C had C -No agency or community officer or employee who in duct in office."
the course of his duties is required to participate in the The 1985 amendment also designated the first par,redevelopment agencyey public entity—isenot subject to § 4 Comm.R (exemptions'from attachment) (lu C ev. formulation of or to approve plans or policies for the graph as subd.(a)and the second paragraph as subd.(b);
enforcement of a money judgment. See Code Civ.Prot. m.Reports 200D. redevelopment of a project area shall acquire any interest substituted`Subdivision(a)does"for"Thus section shall"
in any property included within a project area within the "agency or community"for"such",and"if'for"Provided'
§ 33125. Lawsuits; seal; contracts; bylaws and regulations community. If any such officer or employee owns or has following "business pursuant to this part" in solid. (b);
any direct or indirect financial interest in such property, made a nonsubstantive grammatical change; and added
Notes of Decisions ! he shall immediately make a written disclosure of it to the suhd.W.
Agency 2 agency,as Party. Pacific States Enterprises,Ine.v.City
of Coachella (App. 4 Dist. 1993) 17 Cal.Rptr2d 68, 13 Notes of Decisions
Patties I CalApp.4th 1414,review denied.
2. Agency L In general Tins section would be violated by the purchase or lease
g In re Banker Hill Urban Renewal Ptnject IB of Com- of property within a redevelopment project area by a bank
1 Parties Redevelopment agencies are Band us
agencies
Developer named wrong governmental entity as party which e,dst by virtue of state law and are separate and munity in Agency of City of Los Angeles a witch city council members are interested,to the same
(1964)37 Cal.R tr.74,61 Cal2d 21,389 P.2d 538,certm- extent that members havinwhich such stiesinterestb would violate
in causes of action based on city redevelopment agency's distinct from communities in which they exist. Poem p Gov.C. § 1090 et seq.,which establishes a ban on °vern-
alleged breach of oral agreement to participate in develop- States Enterprises,Inc.v.City of Coachella(App.4 Dist. rare denied 85 S.Ct.certiorari
379 U.S. 899, 13 L.Ed.2d 174, menwl contracts in which an official Malang the contract
meat of auto center and mail: alleged oral contract was 1993) 17 CaLRptr.2d 68, 13 CalApp.4th 1414, review !!!I ��� dismissed, cerporati denied 85 S.Ct. 190, [main may be financially interested. 61 Ops.Atty.Gen. 243,
with redevelopment agency and developer named city,not denied.
volume]379 U.S.23,13 L,Ed2d 173. 5-23-73.
§ 33125.5. Proceeding of meetings; record § 33130.5. Property within project area purchased or leased by employee of agency or community;
An agency shall keep a record of the proceedings of its meetings and those records shall be open to
Written disclosure
examination b} the public to the extent required by law. Historical and Statutory Notes
([emended by Stats.1977,c.797,p.2443,§ 4.) 1989 Legislation.
and when issuing bonds finance multifamily rental
Historical and Statutory Notes - Application of this section to the City of Coalinga when housing,see rov under§ 33300.
1977 Amendment. Added provision for public exams unSeverabElt der k 33 gp of provisions of Stats.1977,c.797,see note
E adopting or amending redevelopment plans within the city
nation.
§ 33136. Insurancepremiums; lower income housing
§ 33130. Conflicts of interest; acquiring interest to participate as owner or to reenter business; 2 agency may finance the cast of premiums necessaryfor the
certain rental agreements or property leases not Property interests under this section provision of insurance during the
construction or rehabilitation of properties that are administered by governmental entities or nonprofit
organizations to provide housing for lower income households, as defined in Section 50079.5, including
(a) No agency er community officer or employee who in the course of his or her duties is required to P P
participate in the formulation of,or to apQ rove plans or policies for,the redevelopment of a project area rental properties,emergency shelters,transitional housing,or special residential care facilities.
shall acquire any interest in any property included within a project area within the community. If included
such officer or employee owns or has any direct or indirect financial interest in* ` * property included - (Added by Stats.198S,c.1564,§ 1.)
Within a project area that officer or employee shall immediately make a Written disclosure of that
financial interest to the agency and the legislative may and the disclosure shall be entered on the
minutes of the agency and the legislative body. Failure to make the djscl°sure required bV this Article 4
subdivision constitutes nusconduct in office.
(b) Subdivision (a) does not prohibit any agency or community officer or employee from acquiring an SUSPENSION AND DISSOLUTION OF AGENCIE�Sy ,ry
interest in property within the project area for the purpose of participating as an owner or rely e ua motioninto business pursuant to this part if that ` * officer or employee has owned a substantially 9
interest as that being acquired for the three years immediately preceding the selection of the project - 33141. Order for deactivation; conditions; refer-
endum,
area.
(cl A rental a cement or lease of ro ertV which meets all of the followin conditions is not an
interest in property for purposes of subdivision(a): * * * -
Additions or changes are indicated by underline; deletions by asterisks s Additions or changes are indicated by underline; deletions by aster'^ks "
ca
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA, AP-
PROVING A RESTATED AND AMENDED LEASE
AGREEMENT WITH THE PARTNERSHIP FOR THE
PERFORMING ART, L.P. FOR THE PLAZA THEATRE
WHEREAS the Community Redevelopment Agency of the City of Palm Springs
currently has a "Theater Lease Agreement" with The Partnership for the Per-
forming Arts, LP for the Agency owned Plaza Theatre which commenced on
September 1, 1991 and extends until December 31, 2006 as a consecutive se-
ries of annual extension options;and
WHEREAS; the tenant desires to restate, amend and extend this lease, again as a
consecutive series of annual extension options, from October 1, 2003 through
May 31, 2018;and
WHEREAS The tenant has agreed to a current annual building lease amount
of $148,800 triple net plus an annual Alley sublease amount of $6,000, and
has also agreed to pay annual CPI increases in the rent starting in June, 2005.
NOW THERE BE IT RESOLVED that the Community Redevelopment Agency of
the City of Palm Springs Approves a Restated and Amended Lease Agreement
with the Partnership for the Performing Art, LP for the Plaza Theatre.
ADOPTED this 30th day of July, 2003.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
3-;
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA APPROVING A
RESTATED AND AMENDED LEASE AGREEMENT WITH
THE PARTNERSHIP FOR THE PERFORMING ARTS, L.P.,
INCLUDING AMENDMENTS AND SUBLEASES WITH PLAZA
INVESTMENT CO., INC. AND THE WESSMAN FAMILY
TRUST TO EFFECTUATE THE CONTINUED LEASE AND
OPERATION OF THE FOLLIES AT THE PLAZA THEATER, IN
MERGED PROJECT AREA# 1 , LI 6-7 C--
WHEREAS,the Community Redevelopment Agency of the City of Palm Springs, California
("Agency") is constituted under the Community Redevelopment Law(California Health and
Safety Code Section 33000 et. seq.) to carry out the purpose as the redevelopment in the
City of Palm Springs ("the City"); and
WHEREAS,the Agency acquired ownership interest in the Plaza Theater Property from the
City in 1998 and has continued in the original Lease to the Partnership for the Performing
Arts L.P. ("PFPA").
WHEREAS, both parties wish to amend and restate the Lease based on its actual
operations and clarifying new developments since the original Lease; and
WHEREAS, operation of the theater requires a sublease from the Agency of certain property
known as the "Alley"owned by Plaza Investment Co., Inc. and as well as a sublease in the
Agency's interest in the Courtyard owned by the Wessman Family Trust; and
WHEREAS, the continued operation of the theater provides an economic revitalization
element to the downtown area of the City thereby carrying out a purpose of the
redevelopment plan; and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an agency
may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99 years,
exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of trust, or
otherwise, or otherwise dispose of any real or personal property or any interest in property;"
and
WHEREAS, pursuant to Section 33433 of the Community Redevelopment Law, Notices of
the Public Hearing concerning the Restated and Amended Lease Agreement and the
attached Sublease Agreements were published in accordance with applicable law; and
WHEREAS,the California Redevelopment Law requires certain findings before the Agency
can enter into this Amendment, as follows:
a) Section 33421.1 -that the Agency find that the provision of such assistance
will effectuate the Redevelopment Plan;
b) Section 33433—the Agency finds that although the rent proposed herein in
the Restated and Amended Lease Agreement and the Sublease of the
Business Property Lease (Alley) as well as the Courtyard Sublease are
slightly less than fair market value, that without Agency assistance the
proposed use of the Theater would not be feasible and therefore it is
necessary to provide Agency financial assistance to encourage the economic
revitalization of the plan area. 36 _
WHEREAS, the Agency has considered the staff report, and all the information, testimony
and evidence provided during the public hearing on July 30, 2003.
NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds that this project is exempt
pursuant to California Code of Regulations Section 15301 as it
concerns an existing facility.
SECTION 3. The Agency hereby approves the Restated and Amended Theater
Lease Agreement with the PFPA.
SECTION 4. The Agency hereby approves the First Amendment to the Business
Property Lease with Plaza Investment Co., Inc. and the Sublease
Agreement to PFPA.
SECTION 5. The Agency hereby approves the Restated and Amended Lease
Agreement (Courtyard) with the Wessman Family Trust and the
Sublease Agreement to PFPA.
SECTION 6. The approval of the above listed agreements collectively effectuates
the purposes of the Community Redevelopment Law as it is intended
to eliminate blight and promote the health,safety and general welfare
of the people of Palm Springs by encouraging economic activity in
the redevelopment plan area.
SECTION 7. The Chairman, or his designee, is hereby authorized to execute on
behalf of the Agency the Restated and Amended Lease Agreement;
the First Amendment to the Business Property Lease as Amended;
the Amended and Restated Lease (Courtyard) and the Courtyard
Sublease Agreements and other documents necessary to the
Agreements, and make minor changes as may be deemed
necessary, in a form approved by Agency Counsel.
ADOPTED this day of 2003.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED &APPROVED AS TO FORM
3co
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, APPROVING A RESTATED
AND AMENDED LEASE AGREEMENT WITH THE
PARTNERSHIP FOR THE PERFORMING ART, L.P.
FOR THE PLAZA THEATRE
WHEREAS the Community Redevelopment Agency of the City of Palm Springs
currently has a "Theater Lease Agreement' with The Partnership for the Per-
forming Arts, LP for the Agency owned Plaza Theatre which commenced on
September 1, 1991 and extends until December 31, 2006 as a consecutive se-
ries of annual extension options;and
WHEREAS; the tenant desires to restate, amend and extend this lease, again as a
consecutive series of annual extension options, from October 1, 2003 through
May 31, 2018;and
WHEREAS The tenant has agreed to a current annual building lease amount
of $148,800 triple net plus an annual Alley sublease amount of $6,000, and
has also agreed to pay annual CPI increases in the rent starting in June, 2005.
NOW THERE BE IT RESOLVED that the City Council of the City of Palm Springs
Approves a Restated and Amended Lease Agreement with the Partnership for the
Performing Art, LP for the Plaza Theatre.
ADOPTED this 30th day of July, 2003.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED & APPROVED AS TO FORM
3 b
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA APPROVING THE AGENCY DISPOSITION OF
PROPERTY IN A RESTATED AND AMENDED LEASE
AGREEMENT WITH THE PARTNERSHIP FOR THE
PERFORMING ARTS, L.P., INCLUDING AMENDMENTS AND
SUBLEASES WITH PLAZA INVESTMENT CO., INC. AND
THE WESSMAN FAMILY TRUST TO EFFECTUATE THE
CONTINUED LEASE AND OPERATION OF THE FOLLIES AT
THE PLAZA THEATER, IN MERGED PROJECT AREA# 1 A W'411
WHEREAS,the Community Redevelopment Agency of the City of Palm Springs, California
("Agency")is constituted under the Community Redevelopment Law(California Health and
Safety Code Section 33000 et. sea.)to carry out the purpose as the redevelopment in the
City of Palm Springs ("the City"); and
WHEREAS, the Community Redevelopment Law requires the City to approve all Agency
dispositions of property including leases; and
WHEREAS,the Agency acquired ownership interest in the Plaza Theater Propertyfrom the
City in 1998 and has continued in the original Lease to the Partnership for the Performing
Arts L.P. ("PFPA").
WHEREAS, both parties wish to amend and restate the Lease based on its actual
operations and clarifying new developments since the original Lease; and
WHEREAS,operation of the theater requires a sublease from the Agency of certain property
known as the "Alley" owned by Plaza Investment Co., Inc. and as well as a sublease in the
Agency's interest in the Courtyard owned by the Wessman Family Trust; and
WHEREAS, the continued operation of the theater provides a economic revitalization
element to the downtown area of the City thereby carrying out a purpose of the
redevelopment plan; and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an agency
may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99 years,
exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of trust, or
otherwise, or otherwise dispose of any real or personal property or any interest in property;"
and
WHEREAS, pursuant to Section 33433 of the Community Redevelopment Law, Notices of
the Public Hearing concerning the Restated and Amended Lease Agreement and the
attached Sublease Agreements were published in accordance with applicable law; and
WHEREAS,the California Redevelopment Law requires certain findings before the Agency
can enter into this Amendment, as follows:
a) Section 33421.1 - that the City find that the provision of such assistance will
effectuate the Redevelopment Plan;
b) Section 33433 — the City finds that although the rent proposed herein in the
Restated and Amended Lease Agreement and the Sublease of the Business
Property Lease (Alley)as well and the Courtyard Sublease are slightly less than
fair market value, that without Agency Assistance the proposed use of the
3De��
Theater would not be feasible and therefore it is necessary to provide
Agency financial assistance to encourage the economic revitalization
of the plan area.
WHEREAS, the City has considered the staff report, and all the information,testimony and
evidence provided during the public hearing on July 30, 2003.
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Springs as
follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds that this project is exempt
pursuant to California Code of Regulations Section 15301 as it
concerns an existing facility.
SECTION 3. The City hereby approves the Restated and Amended Theater Lease
Agreement with the PFPA.
SECTION 4. The City hereby approves the First Amendment to the Business
Property Lease with Plaza Investment Co., Inc. and the Sublease
Agreement to PFPA.
SECTION 5. The City hereby approves the Restated and Amended Lease
Agreement (Courtyard) with the Wessman Family Trust and the
Sublease Agreement to PFPA.
SECTION 6. The approval of the above listed agreements collectively effectuates
the purposes of the Community Redevelopment Law as it is intended
to eliminate blight and promote the health,safety and general welfare
of the people of Palm Springs by encouraging economic activity in
the redevelopment plan area.
ADOPTED this day of 2003.
AYES:
NOES:
ABSENT:
ATTEST:
CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED AS TO FORM
3
b's