HomeMy WebLinkAbout4/3/2002 - AGREEMENTS �OQPpLMSA4
City of Palm Springs
Community and Economic Development Department
• ♦ 3200 E.Tahquicz Canyon Way • Palm Springs,California 92262
f ryC�'t004ptH1 tpA " TEL:(760)323-8259 • FAX(760)322-8325 • TDD(760)864 9527
ttq %P Community Redevelopment Agency • Community Development Block Grant
�lFOR� Downtown Developmeor • Economic Development • Housing• Public Arc
April 25,2016
Ana and Kurt Haggstrom
2063 Ramitas Way
Palm Springs, CA 92262
Re: Plaza Racquet Club 1300 Baristo Road
Notice to Vacate Premises
Dear Ana and Kurt;
This letter will serve as notice that the Fourth Amendment to the Sublease Agreement for property
located at 1300 Baristo Road, Palm Springs, dated December 23, 2014, expires on June 30,2016. This
termination date is concurrent with the termination of the City's master lease with the Palm Springs
Unified School District(District).The sublease will not and cannot be renewed as the District has elected
not to renew its master lease with the City. Thus, by this letter,the City hereby provides notice of
termination of the sublease as of June 30, 2016. There are no further lease extensions and the property
must be vacated prior to the end of the sublease term.
The City of Palm Springs was unable to negotiate a lease extension with the Palm Springs Unified School
District. Please vacate the premises and remove all personal property, including furniture,fixtures, and
equipment, by the close of business on June 30. 2016. Any personal property remaining after the date
of termination will be considered as abandoned and may be disposed of by the City or the District.
If you have any questions, please do not hesitate to contact me at 760-323-8228.
Sincerely,
Lauri Aylaian
Director of Community& Economic Development
Cc: James Thompson, City Clerk ✓
Douglas Holland,City Attorney
Post Office Box 2743 0 Palm Springs, California 92263-2743
THIRD AMENDMENT TO SUBLEASE AGREEMENT
for
The Palm Springs Tennis Center
(Kurt & Ana Haggstrom d/b/a Plaza Racquet Club and City of Palm Springs)
THIS THIRD AMENDMENT TO LEASE AGREEMENT ("Third Amendment") is made
by and between KURT & ANA HAGGSTROM d/b/a PLAZA RACQUET CLUB
("Tenant"), and CITY OF PALM SPRINGS, a charter city and a municipal corporation
("City" or "Landlord"), as December 31, 2011 ("Effective Date of the Third
Amendment"), and it amends that certain Sublease Agreement dated as of October
1, 2002, by and between Tenant and Landlord ("Sublease"), and that certain First
Amendment thereto dated as of November 20, 2002 ("First Amendment") and that
certain Second Amendment thereto dated as of August 6, 2009 ("Second
Amendment"). The Sublease and all Amendments shall be collectively referred to as
the Sublease. All terms defined in the Agreement shall have the same meaning
when used herein.
RECITALS
A. City leases the real properly located at or near 1300 Baristo Road, Palm
Springs, California, commonly known as the "Palm Springs Tennis Center'
("Demised Premises") pursuant to a Lease and Agreement by and between
City as Lessee and the Palm Springs Unified School District ("PSUSD") as
Lessor dated August 7, 1974 ("Lease"), as amended from time to time.
B. The Lease and the Sublease expired on or about August 6, 2010 and were
extended by the First Amendment to the Lease and Second Amendment to
the Sublease to August 6, 2012.
C. Landlord and Tenant desire to extend the term of the Sublease contingent
upon the extension of the Lease.
D. Landlord and Tenant now mutually desire to amend the Sublease as set forth
below.
ORIGINAL BID
AND/OR AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged. Landlord and Tenant mutually agree to amend the Sublease
as follows:
AGREEMENT
1. Section 1.3 of the Sublease shall be replaced in its entirety and amended
to read as follows:
This Third Amendment extends the Term of the Sublease as set forth in
Section 1.2 hereinabove for a period of up to three (3) years terminating on June 30,
2015 ("Extension"), subject to and contingent upon the City and PSUSD mutually
approving and executing an extension of the Lease for a period of no less than three
(3) years ("Contingency") and notwithstanding any provision of this Sublease to the
contrary, the term of the Extension shall terminate on the date the Lease terminates.
2. Except as expressly amended herein, all terms and provisions of the
Sublease and First and Second Amendments shall remain unamended and in full
force and effect as originally executed. In the event there is a conflict between the
terms and provisions of this Second Amendment and the terms and provisions of the
Sublease and First and Second Amendments, the terms and provisions of this Third
Amendment shall control. In the event of any conflict between the terms of this Third
Amendment and the Lease, the terms and provisions of the Lease shall control.
3. Failure to perform the obligations specified under Section 1.6 of the
sublease shall be deemed defaults under the provisions of Section 10.1 of the
Sublease.
4. This Third Amendment shall be binding upon and inure to the benefit of
Tenant and Landlord and their respective successors and assigns. This Third
Amendment may be executed in counterparts, each of which, when taken together,
shall constitute one fully executed original. Facsimile signatures shall be binding for
all purposes of this Third Amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Tenant and Landlord have executed this Third
Amendment as of the date first written above.
"Tenant"
KURT & ANA HAGGSTROM d/b/a PLAZA RACQUET CLUB
By: —Date:
Kurt Haggstro g
By: � l Date: 1 2 Z
i
Ana HaggstrorW
"City" or "Landlord"
CITY OF PALM SPRINGS, a charter city and a municipal corporation
David H. Ready, City Mana er
Date: 9 ��
Attest:
James Thompson, City Clerk APPROVED BY CITY COUNCIL
?ppro-vne!d as to form by: n1l i 0/L0)Z
WOODRU SPRADLIN & SMART
Dougl s olland, Esq., K y Attorney
SECOND AMENDMENT TO SUBLEASE AGREEMENT
For
The Palm Springs Tennis Center
(Kurt & Ana Haggstrom d/b/a Plaza Racquet Club and City of Palm Springs)
THIS SECOND AMENDMENT TO LEASE AGREEMENT ("Second
Amendment") is made by and between KURT & ANA HAGGSTROM d/b/a
PLAZA RACQUET CLUB ("Tenant"), and CITY OF PALM SPRINGS, a charter
city and a municipal corporation ("City" or "Landlord"), as of 'F
2009 ("Effective Date of the Second Amendment'), and it amends that certain
Sublease Agreement dated as of October 1, 2002, by and between Tenant and
Landlord ("Sublease"), and that certain First Amendment thereto dated as of
November 20, 2002 ("First Amendment'). All terms defined in the Agreement
shall have the same meaning when used herein.
RECITALS
A. City leases the real property located at or near 1300 Baristo Road, Palm
Springs, California, commonly known as the 'Palm Springs Tennis Center"
("Demised Premises") pursuant to a Lease and Agreement by and between City
as Lessee and the Palm Springs Unified School District ("PSUSD") as Lessor
dated August 7, 1974 ("Lease"), as amended from time to time.
B. The Lease and the Sublease expire on or about August 6, 2010.
C. Landlord and Tenant desire to extend the term of the Sublease contingent
upon the extension of the Lease.
D. Landlord and Tenant now mutually desire to amend the Sublease and First
Amendment as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Landlord and Tenant mutually agree to amend
the Sublease as follows:
AGREEMENT
1. Section 1.3 of the Sublease shall be replaced in its entirety and amended
to read as follows:
This Second Amendment extends the Term of the Sublease as set
forth in Section 1.2 hereinabove for a period of up to two (2) years terminating on
August 6, 2012 ("Extension"), subject to and contingent upon the City and
Second Amendment Plaza Racquet Club Page 1 of 4 _
PSUSD mutually approving and executing an extension of the Lease for a period
of no less than two (2) years ("Contingency") and notwithstanding any provision
of this Sublease to the contrary, the term of the Extension shall terminate on the
date the Lease terminates.
2. Section 1.4 of the Sublease shall be amended to add the following
paragraph:
Upon the termination of the initial term of the Sublease and for the
term of the Extension as provided in Section 1.3 of the Sublease, Rental shall be
in the amount of Twenty Four Thousand Dollars and 00/100 ($24,000), with
Tenant to pay all operational, utility, and maintenance cost necessary to operate
the Demised Premises in accordance with the maintenance standards of Section
5.3 and the other provisions of the Sublease. All such amounts shall be deemed
payment of rent hereunder.
3. Section 1.6 of the Sublease shall be amended to add the following:
In addition to the foregoing, Tenant shall provide the following
performance obligations which shall commence immediately upon the Effective
Date of this Second Amendment:
(a) Palm Springs resident privileges (aka, "Member for a Day") which
shall include free access and use of the Demised Premises for the equivalent of
one full day per week allocated over such days of the week, times, and rules as
Tenant and the City's Parks and Recreation Director mutually agree and
establish.
(b) Non-member Palm Springs residents shall be offered a free
instructional clinic on one (1) day of each week.
(c) Expand the Palm Springs "Fifth (5t") Grade Students Program" to
include nine (9) free "Introduction to Tennis" classes, The classes shall run for a
minimum of one (1) hour and fifteen (15) minutes per instructional session with
three (3) tennis professionals and all necessary tennis equipment provided. Up
to 350 students per year shall be provided instruction pursuant to this program.
(d) Up to six Palm Springs resident youths shall be granted a free one
(1) year club membership based on financial need as determined by the PSUSD
"Free Lunch Program" criteria.
(e) Parmer with the Cty's Department of Parks and Recreation,
including but not limited to, advertising and marketing as a City facility with a link
on the City's website and in City promotional materials.
Second Amendment Plaza Racquet Club Page 2 of 4
(f) Host up to three (3) city .non-profit organization funding .raising
tournaments annually and -include the City of Palm Springs as a sponsor.
(g) To increase the City's tourism base, the Plaza Racquet Club is
dijuuwayvu LU puib A:. a Valle Iy w ieklllf`.i YUuI YtiC.¢IiCnIS VVlllull vVilI IilI Iuub Ulb 3"ILy
of Palm Springs as a sponsor.
3. Except as expressly amended herein, all terms and provisions of the
Sublease and First Amendment shall remain unamended and in full force and
effect as originally executed_ In the event there is a conflict between the terms
and provisions of this Second Amendment and the terms and provisions of the
Sublease and First Amendment, the terms and provisions of this Second
Amendment shall control. In the event of any conflict between the terms of this
Second Amendment and the Lease, the terms and provisions of the lease shall
control.
4, Failure to perform the obligations specified under Section 1.6 of the
sublease shall be deemed defaults under the provisions of Section 10.1 of the
Sublease.
5. This Second Amendment shall be binding upon and inure to the benefit of
Tenant and Landlord and their respective successors and assigns. This Second
Amendment may be executed in counterparts, each of which, when taken
together, shall constitute one fully executed original. Facsimile signatures shall
be binding for all purposes of this Second Amendment.
[SIGNATURE PAGE FOLLOWS]
Second Amendment Plaza Racquet Club Page 3 of 4
IN WITNESS- WHEREOF, Tenant and Landlord have executed this Second
Amendment as of the date first written above.
"Tenant"
KURT & ANA HAGGSTROM d/b/a PLAZA RACQUET CLUB
By: 1��6 L=06 � Date:
Kurt Haggstrorih
By: fL� Date:
Ana Haggstrom
"City" or "Landlord"
CITY OF PALM SPRINGS, a charter city and a municipal corporation
By: /SZ141
David H- Ready, C ager
Attest:
APPROVES BY CITY CCUNCII
J es Thompson, City Clerk
Approved as to form by:
WOODRO F, SPRADLIN & SMART
r
Al 7
Dougla's C. Holland, Esq., City Attorney
Second Amendment Plaza Racquet Club Page 4 of 4
Haggstrom, Kurt 8 Ana
PS Tennis Center
AGREEMENT #4475 . Amend 1
FIRST AMENDMENT TO LEASE AGREEMEl M07162, 9-18-02
WITH KURT &ANA 14AGGSTROM DB/A PLAZA RACQUET CLUB
FOR THE PALM SPRINGS TENNIS CENTER, 1300 BARISTO ROAD
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is entered into
this�40 day of Im 0'0�n/i E Lf, 2002 (the "Effective Date") by and between the CITY OF
PALM SPRINGS, a municipal corporation, ("Landlord"), whose offices are located at P.O. Box
2743, 3200 East Tahquitz Canyon Way, Palm Springs, California 92263 and Kurt &Ana
Haggstrom, d/b/a Plaza Racquet Club ("Tenant").
RECITALS
A. On April 3, 2002, Landlord and Tenant entered into that certain Lease
Agreement ("Original Agreement")pursuant to which Tenant agreed to operate the Palm.
Springs Tennis Center on Baristo Road.
B. Landlord desires to lease the undeveloped portion of the Tennis Center to the
Palm Springs Tennis Club Owners Association for the development of additional courts.
C. The parking lot and its landscaping has been reserved in both leases as
Common Area, and Landlord and both tenants desire to have identical language in both leases
governing the maintenance and upgrade of common area.
D. Any capitalized terms not defined herein shall have the meanings ascribed to
them in the Original Agreement. The Original Agreement, as modified by this Amendment, is
hereinafter referred to as the"Agreement."
NOW, THEREFORE, the parties hereto agree as follows:
I. Section 5.3.2 is hereby added to read as follows:
Maintenance and Repair of Common Area. Tenant Agrees to the
provisions regarding maintenance and repair of the Common Area as set forth in
Exhibit"B-2"attached hereto and incorporated herein by this reference.
#26692 V2
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II. Exhibit "B-2", Plan of Non Exclusive Areas shall be amended to add the following:
E=BIT "B-2"
(EXHIBIT"G" in Adjacent Tenant's Sublease)
COMMON AREA MAINTENANCE AND REPAIR
I. A detailed plot of the Common Area is attached to this Exhibit "B-2" and incorporated
herein by this reference.
2. Monthly maintenance costs for the Common Area shall be borne by the Tenant (Kurt and
Ana Haggstrom), but shall be equally shared by Tenant and Adjacent Tenant (Palm Springs
Tennis Club Owners Association) after the commencement date of this Adjacent Tenant's
Sublease. Adjacent Tenant shall pay to the Tenant the amount of TWO HUNDRED AND
FIFTY DOLLARS ($250.00) per month towards the cost of the ongoing maintenance and
utilities of the Common Area. Said amount shall increase by Ten Dollars ($10.00) each year
on the anniversary of the Commencement Date of Adjacent Tenant's Sublease. Said
payment shall be due on the first day of each month and shall commence on the first day of
the month of the Commencement Date.
3. In addition to the monthly maintenance costs Adjacent Tenant shall reimburse Tenant fifty
(50%) percent of any replacement or repair costs for existing planting or electrical fixtures
within thirty (30) days upon presentation of receipt evidencing the actual cost to be
reimbursed.
4. In the event either Tenant or Adjacent Tenant wishes to improve, upgrade, or enhance in
either plantings or fixtures in the Common Area, the party wishing the upgrade shall inform
the other party and the Landlord in writing of the nature of the improvement, the cost of the
improvement, and the projected cost of future maintenance. If the parties agree on the
improvement, and obtain Landlord's approval thereof, the cost of installation and future
maintenance shall be shared equally, and the party installing the improvement shall be
reimbursed in the same manner as item 3 above. If the parties do not agree on the
improvement, the improvement shall not be made.
5. Within three (3) years of the Commencement Date, the parking lot in the Common Area
shall be reslurried and restriped. The Tenant shall undertake the project and Adjacent
Tenant shall pay for fifty (50%) percent of the costs incurred. The estimated fifty (50%)
percent cost is currently less than $2,500.00. Multiple Bids shall be obtained for the
performance of the work. Payment shall be made ten (10) days in advance of the work,
based on the City Engineer's estimate of the cost, and final adjusted payment to reflect
actual expense shall be made within ten (10) days of completion of the work and with
submission of invoices and receipt.
6. In the event of any disputes between Tenant and Adjacent Tenant over the provisions of this
Exhibit "B-2" concerning the Common Area, the City Manager of Landlord or his designee
shall hear and judge the dispute, and the judgment of the City Manager shall be final with
the parties.
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III. Full Force and Effect. Except as expressly stated herein, all other terms of the Original
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF the Landlord and Tenant have executed this Agreement as of the date
first written above.
"LANDLORD"
ATTEST: CITY OF PALM SPRINGS, a municipal
corporation
s
B . �,. .� Bq �' -�f ✓
'City Cler City Manager
APPROVED AS TO FORM:
BURKE WILLIAMS & SORENSEN LLP I31PPRa"IC$.) rrv-
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t ttorney
"TENANT"
Kurt Haggstrom
Ana Haggstrom
#26692 V2
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Wggstrom, Kurt S Ana
ennis Center Sublease
ACREERM #4475
M07049, 4-3-02
SUBLEASE
By and Between
THE CITY OF PALM SPRINGS
and
Kurt & Ana Haggstrom
IRV#19554 v4
TABLE OF CONTENTS
Page No.
1.0 SUBLEASE SUMMARY. .....................................................................................1
1.1 Demised Premises........................................................................................1
1.2 Sublease Commencement Date....................................................................1
1.3 Extension Options. N/A..............................................................................1
1.4 Rental...........................................................................................................1
1.5 Security Deposii...........................................................................................1
1.6 Use of Demised Premises. ...........................................................................1
1.7 Tenant' s Address for Notices......................................................................2
2.0 TERM......................................................................................................................2
2.1 Term.............................................................................................................2
2.2 Termination By Landlord. ...........................................................................2
2.3 Holding Over. ..............................................................................................2
3.0 RENTAL.................................................................................................................3
3.1 Annual Rental. .............................................................................................3
3.2 Real Property Taxes.....................................................................................3
3.3 Personal Property Taxes. .............................................................................3
3.4 Utilities.........................................................................................................3
3.5 Late Payment. ..............................................................................................3
3.6 Interest..........................................................................................................3
4.0 USE OF THE PREMISES....................................................................................4
4.1 Permitted Use...............................................................................................4
4.2 Prohibited Uses............................................................................................4
4.3 Compliance with Laws. ...............................................................................4
4.4 Signs.............................................................................................................5
4.5 Hours of Business. .......................................................................................5
4.6 Rules and Regulations..................................................................................5
5.0 CONSTRUCTION OF NEW FACILITIES, ALTERATIONS AND
REPAIRS................................................................................................................5
IRV#19554 v4 i
5.1 Construction of Improvements. ...................................................................5
5.1.1 Development Plan............................................................................5
5.1.2 Schedule of Construction.................................................................6
5.1.3 Donated Fund Disbursement............................................................6
5.2 Alterations and Fixtures...............................................................................6
5.3 Maintenance and Repair. .............................................................................7
5.4 Free from Liens............................................................................................7
6.0 INSURANCE AND INDEMNIFICATION.........................................................7
6.1 Insurance Provided by Landlord..................................................................7
6.2 Insurance Provided by Tenant .....................................................................7
6.3 Indemnification of Landlord........................................................................9
7.0 ABANDONMENT AND SURRENDER............................................................10
7.1 Abandonment.............................................................................................10
7.2 Surrender of Sublease. ...............................................................................10
8.0 DAMAGE AND DESTRUCTION OF PREMISES. ........................................10
9.0 ASSIGNMENT AND SUBLETTING................................................................11
10.0 DEFAULT AND REMEDIES ............................................................................11
10.1 Default by Tenant. .....................................................................................12
10.2 No Waiver..................................................................................................13
10.3 Landlord's Default.....................................................................................13
11.0 CONDEMNATION. ............................................................................................14
12.0. MISCELLANEOUS ............................................................................................14
12.1 Entry and Inspection. .................................................................................14
12.2 Estoppel Certificate....................................................................................14
12.3 Jurisdiction and Venue...............................................................................14
12.4 Partial Invalidity.........................................................................................15
12.5 Successors in Interest.................................................................................15
12.6 No Oral Agreements. .................................................................................15
12.7 Authority....................................................................................................15
12.8 Relationship of Parties...............................................................................15
IRV 919554 v4 11
12.9 Nondiscrimination......................................................................................15
12.10 Notices. ......................................................................................................15
12.11 Waiver........................................................................................................16
12.12 Exhibits and Addenda................................................................................16
EXHIBIT A- LEGAL DESCRIPTION OF THE DEMISED PREMISES
EXHIBIT 13-1 -PLOT PLAN OF DEMISED PREMISES
EXHIBIT B-2—PLAN OF NON EXCLUSIVE AREAS
EXHIBIT C - ESTOPPEL CERTIFICATE
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E- CONSTRUCTION OBLIGATIONS
EXHIBIT F - IMPROVEMENT SCHEDULE
EXHIBIT G—LETTER UNDERSTANDING TRIBE/CITY
EXHIBIT H—DRAW REST FORM
IRV#19554 v4
111
SUBLEASE
THIS SUBLEASE ("Sublease") is made and entered into 1st day of October, 2002, by
and between the CITY OF PALM SPRINGS, a municipal corporation (referred to variously as
"Landlord" or "City"), and Kurt& Ana Haggstrom, d/b/a Plaza Racquet Club ("Tenant").
1.0 SUBLEASE SUMMARY. Certain fundamental Sublease 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 Sublease.
In the event of any conflict between any fundamental Sublease provision and the balance of this
Sublease, the latter shall control. References to specific Sections are for convenience only and
designate some of the Sections where references to the particular fundamental Sublease
provisions may appear.
1.1 Demised Premises. The "Demised Premises" shall refer to that certain
real property located in the County of Riverside, State of California, and leased to the City of
Palm Springs by the Palm Springs Unified School District through a Lease and Agreement dated
August 7, 1974 (PSUSD Lease), as more particularly described in Exhibit "A" hereof together
with the improvements located thereon and as depicted on the Plot Plan attached as Exhibit "B-
1" hereof. Certain portions of the Demised Premises shall be nonexclusive and Landlord may
include them in a lease of adjacent property ("Adjacent Property"). Nonexclusive areas are
shown on Exhibit `B-2" and include the parking lot and an access area from the parking lot to
Adjacent Property.
1.2 Sublease Commencement Date. The Sublease shall commence May 1,
2002 and continue until August 6, 2010, and thereafter as may be allowed by the Palm Springs
Unified School District (School District) and/or the City of Palm Springs. In the event City
receives payment from the Agua Caliente Tribe ("Tribe") pursuant to the letter in Exhibit "G",
then from IYt , 2002 until October 1, 2002 the Tenant shall not commence rent, maintenance
or operation responsibilities.(0-
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1.3 Extension Options. N/A
1.4 Rental. Rental shall be equal to the amount owed by the City to the
School District pursuant to the PSUSD Lease Agreement with the District, with Tenant to pay all
operational, utility and maintenance cost necessary to operate the Demised Premises in
accordance with the maintenance standards of Section 5.3 and the other provisions of the
Sublease. All such amounts shall be deemed payment of rent hereunder. After any lease of
Adjacent Property providing for joint use of the parking area, there shall be shared payment for
the future maintenance of the parking area(including any necessary reslurrying).
1.5 Security Deposit. $ N/A
1.6 Use of Demised Premises. Operation of a Tennis Center; construction of
improvements to courts, facilitation and promotion of an affordable membership and walk-in
tennis club facility for use by residents and tourists from area hotels and motels; promotion and
IRV 919554 v4
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operation of tournaments and operation of an affordable junior tennis program; pro shop retails
sales, refreshments and youth entertainment. Pursuant to the Joint Use of Facilities Agreement
between the Landlord and the School District the School District and the Tenant shall make good
faith efforts to coordinate usage of the Demised Premises for the boys and girls tennis teams.
Tenant shall make Demised Premises available for the USTA National Junior Tennis
Tournament (the "Easter Bowl") in the spring of each year.
1.7 Tenant' s Address for Notices.
Kurt & Ana Haggstrom
2063 Ramitas Way
Palm Springs, CA 92262
Telephone: 760.323.8997
With a copy to:
James Cato Ferguson
Ferguson& Bernheimer
73010 Highway 111, Suite 1
Palm Desert, CA 92260
Telephone: 760.776.8233
2.0 TERM.
2.1 Term. The term of this Sublease shall commence on the date specified in
Section 1.2 ("Commencement Date") and shall continue for the period specified therein unless
earlier terminated as provided herein.
2.2 Termination By Landlord. Landlord shall have the right to terminate this
Sublease effective on any anniversary of the Commencement Date, with or without cause, by
providing Tenant with at least sixty (60) days' advance written notice. If landlord terminates this
Sublease pursuant to this Section, Landlord shall pay Tenant the unamortized portion of the
Improvement Costs that are amortized pursuant to Section 51. (but not any portion of the
Improvement Costs paid from the Tribe Funds pursuant to Section 5.1). If Landlord terminates
this Sublease as provided in this Section, Tenant hereby waives any right to receive any other
compensation from Landlord, including, but not limited to, the value of Tenant's leasehold
interest, loss of goodwill and relocation benefits, inverse condemnation or the taking of property
and Landlord shall have no obligation to pay Tenant therefor.
2.3 Holding Over. Any holding over after the expiration of the term of this
Sublease, with the consent of Landlord, express or implied, shall be construed to be a tenancy
from month to month, cancelable upon thirty (30) days written notice, and at a rental equal to
one hundred fifty percent (150%) of the last applicable Monthly Rental and upon terms and
conditions as existed during the last year of the term hereof.
IRV#19554 v4
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3.0 RENTAL.
3.1 Annual Rental. Tenant shall pay to Landlord, during the term of this
Sublease from and after the Commencement Date as annual rental ("Rental") for the Demised
Premises the sum specified in Section 1.4 hereof, which sum shall be paid in advance on the
Commencement Date and yearly thereafter. All rental to be paid by Tenant to Landlord shall be
in lawful money of the United States of America and shall be paid without deduction or offset,
prior notice or demand at the address designated in Section 12.10 hereof.
3.2 Real Property Taxes. In addition to all rentals herein reserved, Tenant
shall pay, at the election of Landlord, either directly to the taxing authority or to Landlord,
annual real estate taxes and assessments levied upon the Demised Premises (including any
possessory interest taxes), as well as taxes of every kind and nature levied and assessed in lieu
of, in substitution for, or in addition to, existing real property taxes. Such amount shall be paid
on the date that is twenty (20) days prior to the delinquent date or, if Landlord receives the tax
bill, ten (10) days after receipt of a copy of the tax bill from Landlord, whichever is later. Even
though the term of this Sublease has expired and Tenant has vacated the Demised Premises,
when the final determination is made of Tenant's share of such taxes and assessments, Tenant
shall immediately pay to Landlord the prorated amount of any additional sum owed.
3.3 Personal Property Taxes. During the term hereof Tenant shall pay prior to
delinquency all taxes assessed against and levied upon fixtures, furnishings, equipment and all
other personal property as of Tenant contained in the Demised Premises, and when possible
Tenant shall cause said fixtures, furnishings, equipment and other personal property to be
assessed and billed separately from the real property of Landlord.
3.4 Utilities. Tenant shall pay for all utilities to the Demised Premises which
shall be charged in the name of Tenant.
3.5 Late Payment. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rental or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Sublease, the exact amount of which is extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges. Accordingly, any
payment of any sum to be paid by Tenant not paid when within five (5) days of its due date shall
be subject to a five percent (5%) late charge. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair compensation to Landlord
for its loss suffered by such late payment by Tenant.
3.6 Interest. Any sum to be paid pursuant to the terms of this Sublease not
paid when due shall bear interest from and after the due date until paid at a rate equal to three
percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time
during such period so long as the rate does not exceed the maximum non-usurious rate permitted
by law in which case interest shall be at the maximum non-usurious rate allowed by law at the
time the sum became due.
IRV N 19554 v4
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4.0 USE OF THE PREMISES.
4.1 Permitted Use. The Landlord hereby leases to Tenant and Tenant hires
from Landlord the Demised Premises with appurtenances as defined herein, for the purpose of
conducting thereon only the use specified in Section 1.6 of this Sublease.
4.2 Prohibited Uses. Tenant shall not sell or permit to be kept, used, displayed
or sold in or about the Demised Premises (a) pornographic or sexually explicit books, magazines,
literature, films or other printed material, sexual paraphernalia, or other material which would be
considered lewd, obscene or licentious, (b) any article which may be prohibited by standard
forms of fire insurance policies, or (c) any alcoholic beverages unless expressly permitted by
Section 1.6 hereof.
4.3 Compliance with Laws. Tenant shall, at his sole cost and expense, comply
with all of the requirements of all municipal, state and federal authorities now in force or which
may hereafter be in force pertaining to the use of the Demised Premises, and shall faithfully
observe in said use all municipal ordinances, including, but not limited to, the General Plan and
zoning ordinances, state and federal statutes, or other governmental regulations now in force or
which shall hereinafter be in force. Tenants violation of law shall constitute an incurable default
under this Sublease. The judgment of any court of competent jurisdiction, or the admission of
Tenant in any action or proceeding against Tenant, whether Landlord be a party thereto or not,
that Tenant has violated any such order or statute in said use, shall be conclusive of that fact as
between the Landlord and Tenant.
Tenant shall not engage in any activity on or about the Demised Premises that
violates any Environmental Law, and shall promptly, at Tenants sole cost and expense, take all
investigatory and/or remedial action required or ordered by any governmental agency or
Environmental Law for clean-up and removal of any contamination involving any Hazardous
Material created or caused directly or indirectly by Tenant. The term"Environmental Law" shall
mean any federal, state or local law, statute, ordinance or regulation pertaining to health,
industrial hygiene or the environmental conditions on, under or about the Demised Premises,
including, without limitation, (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii)
California Health and Safety Code Sections 25100 et seq.; (iv) the Safe Drinking Water and
Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.; (v)
California Health and Safety Code Section 25359.7; (vi) California Health and Safety Code
Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.;
(viii) California Water Code Section 1300 et seq.; and (ix) California Civil Code Section 3479 et
seq., as such laws are amended and the regulations and administrative codes applicable thereto.
The term "Hazardous Material" includes, without limitation, any material or substance which is
(i) defined or listed as a"hazardous waste", "extremely hazardous waste", "restrictive hazardous
waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under
the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos;
and/or (iv) substances known by the State of California to cause cancer and/or reproductive
toxicity. It is the intent of the parties hereto to construe the terms "Hazardous Materials" and
"Environmental Laws" in their broadest sense. Tenant shall provide all notices required pursuant
IRV#19554 v4
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to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety
Code Section 25249.5 et seq. Tenant shall provide prompt written notice to Landlord of the
existence of Hazardous Substances on the premises and all notices of violation of the
Environmental Laws received by Tenant.
4.4 Signs. Tenant shall not place or permit to be placed any sign that is not in
compliance with the sign ordinance of the Landlord upon the exterior or in the windows of the
Demised Premises. Any sign not constructed in accordance therewith shall be immediately
removed by Tenant and, if said sign is not removed by Tenant within ten (10) days of written
notice from Landlord to Tenant, then Landlord may remove and destroy said sign without
Tenants approval. At such time as a use is established on the adjacent parcel, Tenant shall allow
signage as approved by the Landlord related to the adjacent use.
4.5 Hours of Business. Subject to the provisions of Section 8.0 hereof, Tenant
shall continuously during the entire term hereof conduct and carry on Tenants business in the
Demised Premises and shall keep the Demised Premises open for business and cause Tenant's
business to be conducted therein during the usual business hours of each and every business day,
during Tenant's operation season from October 1 through June 1, as is customary for businesses
of like character to be open for business in the county in which the Demised Premises are
located. In no event, however, shall such hours of being open for business be less than 8:00 a.m.
through 5:00 p.m. at least five days per week. This provision shall not apply if the Demised
Premises should be closed and the business of Tenant temporarily discontinued therein on
account of strikes, lockouts, or similar causes beyond the reasonable control of Tenant.
4.6 Rules and Regulations. Tenant shall faithfully observe and comply with
the rules and regulations that Landlord shall from time to time promulgate and/or modify. The
rules and regulations, if any, are attached hereto as Exhibit "D" ("Rules and Regulations"). Any
amendment or modification of the Rules and Regulations shall be binding upon the Tenant upon
delivery of a copy of such amendment or modification to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of any said rules and regulations by any other
tenants or occupants. The Rules and Regulations shall apply and be enforced as to all tenants in
the Demised Premises on a uniform basis.
5.0 CONSTRUCTION OF NEW FACILITIES, ALTERATIONS AND
REPAIRS.
5.1 Construction of Improvements. Tenant shall, at its sole cost and expense,
install on the Demised Premises the improvements described in Attachment No. "E" (the
"Improvements"). In the event the City receives funds from the Tribe for this purpose (Tribe
Funds), such funds shall be deposited in the Disbursement Account described in Section 5.1.3
and used to assist in the cost of the Improvements. Any or all such improvements shall be
designed and constructed subject to the approval of the City and Agency and shall be consistent
with Exhibit "E." The Improvements shall be completed according to the Schedule in Exhibit
«F „
5.1.1 Development Plan. On or before June 1, 2002, Tenant shall submit
to the City preliminary, and thereafter final plans, drawings, and specifications for development
IRV#19554 v4 _5_
of the Improvements in accordance with this Section and all in accordance with the City's
requirements. Tenant shall exercise its best efforts to timely submit all documents and
information necessary to obtain all development and building approvals from the City in a timely
manner. Not by way of limitation of the foregoing, in developing and constructing the
Improvements, Tenant shall comply with all applicable development standards in City's
Municipal Code and shall comply with all building code, landscaping, signage, and parking
requirements, except as may be permitted through approved variances and modifications.
5.1.2 Schedule of Construction. Except as provided in the Improvmeent
Schedule (Exhibit F), Tenant shall begin and complete all plans, reviews, construction and
development specified in this Sublease prior to Tenant's commencement of operations, but in no
event later than October 1, 2002, unless an extension of time is approved in writing by City in its
sole discretion. Once construction is commenced, it shall be diligently pursued to completion,
and shall not be abandoned for more than thirty (30) consecutive days.
5.1.3 Donated Fund Disbursement. All funds received by City for the
Improvements, whether from the Tribe, any grants; or any funds donated to the City for the
improvements shall be deposited in the Disbursement Account and shall be dispersed upon
evidence satisfactory to the City Manager that either the improvements have been completed and
approved or that the funds will be paid directly to the contractor responsible for performing the
work. City shall keep Tenant informed of the balance remaining in the account and promptly
disburse funds when requested. Tenant's request for disbursement shall be made in the form of a
draw request attached hereto as Exhibit H.
5.2 Alterations and Fixtures. To the extent required by law, the Tenant shall
be responsible for altering and modifying the restrooms at the Demised Premises into
compliance with the Americans with Disabilities Act, 42 U.S.C. at Section 12111 et seq. (ADA
Improvements). The type of renovation made to the pro shop as specified in Exhibit "E" may be
dependant on obtaining grant funds to assist with the cost of any necessary modifications to the
restrooms. Tenant shall not make, or suffer to be made, any alterations to the Demised Premises,
or any part thereof, without the prior written consent of Landlord, and any alterations to the
Demised Premises, except movable furniture and trade fixtures, shall become at once a part of
the realty and shall at the expiration or earlier termination of this Sublease belong to 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. Landlord may require that any such alterations be removed prior to the expiration of
the term hereof. Any removal of alterations or furniture and trade fixtures shall be at Tenant's
expense and accomplished in a good and workmanlike manner. Any damage occasioned by such
removal shall be repaired at Tenants expense so that the Demised Premises can be surrendered in
a good, clean and sanitary condition as required by Section 5.2 hereof. 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. Upon completion of construction of the alterations, Tenant
shall submit to Landlord evidence satisfactory to Landlord of the cost of said alterations
("Improvement Costs"). The Improvement Costs shall be amortized over the remaining term of
IRV#19554 v4
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this Sublease on a straight line basis for the purposes specified in Section 2.2 (but not including
Tribe Funds in said amortization).
5.3 Maintenance and Repair. Tenant shall, at all times during the term hereof,
and at Tenants sole cost and expense, keep, maintain and repair the Demised Premises, and other
improvements within the Demised Premises in good and sanitary order, condition, and repair
(except as hereinafter provided) including without limitation, the maintenance and repair of any
doors, window casements, glazing, heating and air conditioning system, plumbing, pipes,
electrical wiring and conduits. Tenant shall also at its sole cost and expense be responsible for
any alterations or improvements to the Demised Premises necessitated as a result of the
requirement of any municipal, state or federal authority. Tenant hereby waives all right to make
repairs at the expense of Landlord, and Tenant hereby waives all rights provided for by the Civil
Code of the State of California to make said repairs. By entering into the Demised Premises,
Tenant shall be deemed to have accepted the Demised Premises as being in good and sanitary
order, condition and repair, and Tenant agrees on the last day of said term or sooner termination
of this Sublease to surrender the Demised Premises with appurtenances, in the same condition as
when received and in a good, clean and sanitary condition, reasonable use and wear thereof and
damage by fire, act of God or by the elements excepted. Tenant shall periodically sweep and
clean the sidewalks adjacent to the Demised Premises, as needed.
5.4 Free from Liens. During the period of construction and thereafter Tenant
shall keep the Demised Premises free from any liens arising out of any work performed, material
furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. Upon
completion of construction of the improvements Tenant shall assure that lien releases are
obtained for all mechanics liens.
6.0 INSURANCE AND INDEMNIFICATION.
6.1 Insurance Provided by Landlord. Landlord shall maintain fire and
extended coverage insurance throughout the term of this Sublease in an amount equal to at least
ninety percent (90%) of the replacement value of any building on the Demised Premises,
together with such other insurance, coverages and endorsements as may be required by
Landlord's lender, or as Landlord may determine in its sole discretion. Tenant hereby waives
any right of recovery from Landlord, its officers and employees, and Landlord hereby waives
any right of loss or damage (including consequential loss) resulting from any of the perils
insured against as a result of said insurance. Tenant agrees to pay to Landlord its pro rata share
of the cost of said insurance to be determined by the relationship that the gross floor area of the
Demised Premises bears to the total gross leasable floor area of the building or buildings for
which such policy relates.
6.2 Insurance Provided by Tenant.
(a) Food Preparation. Tenant, if involved in food preparation and
sales as a cafe, restaurant, or similar use, and/or food takeout service, shall install at
Tenant's expense any fire protective systems in grill, deep fry, and cooking areas which
are required by city, county, and state fire ordinances, and such system when installed
IRV#19554 v4 _7_
shall qualify for full fire protective credits allowed by the fire insurance rating and
regulatory body in whose jurisdiction the Demised Premises are located.
(b) Tenant to Provide Personal Property Insurance. Tenant, at its
expense, shall maintain fire and extended coverage insurance written on a per occurrence
basis on its trade fixtures, equipment, personal property and inventory within the
Demised Premises from loss or damage to the extent of their full replacement value and
shall provide plate glass coverage.
(c) Tenant to Provide Liability Insurance. During the entire term of
this Sublease, the Tenant shall, at the Tenants sole cost and expense, but for the mutual
benefit of Landlord and Tenant, maintain comprehensive general liability insurance
insuring against claims for bodily injury, death or property damage occurring in, upon or
about the Demised Premises and on any sidewalks directly adjacent to the Demised
Premises written on a per occurrence basis in an amount not less than either (i) a
combined single limit of ONE MILLION DOLLARS ($1,000,000.00) for bodily injury,
death, and property damage or (ii) bodily injury limits of $250,000.00 per person,
$500,000.00 per occurrence and $500,000.00 products and completed operations and
property damage limits of$100,000.00 per occurrence and $250,000.00 in the aggregate;
provided, however, if Landlord so elects Landlord may provide such insurance and, in
such event, Tenant agrees to pay its pro rata share of the cost of said insurance on the
same basis as provided in Section 6.1 above.
(d) Tenant to Provide Worker's Compensation Insurance. If
applicable, Tenant shall, at the Tenants sole cost and expense, maintain a policy of
worker's compensation insurance in an amount as will fully comply with the laws of the
State of California and which shall indemnify, insure and provide legal defense for both
the Tenant and the Landlord against any loss, claim or damage arising from any injuries
or occupational diseases occurring to any worker employed by or any persons retained by
the Tenant in the course of conducting Tenant's business in the Demised Premises.
(e) General Provisions Applicable to Tenant's Insurance. All of the
policies of insurance required to be procured by Tenant pursuant to this Section 6.2 shall
be primary insurance and shall name the Landlord, its officers, employees and agents as
additional insureds. The insurers shall waive all rights of contribution they may have
against the Landlord, its officers, employees and agents and their respective insurers. All
of said policies of insurance shall provide that said insurance may not be amended or
cancelled without providing 30 days prior written notice by registered mail to the
Landlord. Prior to the Commencement Date or such earlier date as Tenant takes
possession of the 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 Bests
Insurance Guide. In the event the Risk Manager of Landlord ("Risk Manager")
determines that (i) the Tenant's activities in the Demised Premises creates an increased or
decreased risk of loss to the Landlord, (ii) greater insurance coverage is required due to
IRV#19554 0 _g_
the passage of time, or (iii) changes in the industry require different coverages be
obtained, Tenant agrees that the minimum limits of any insurance policy required to be
obtained by Tenant may be changed accordingly upon receipt of written notice from the
Risk Manager, provided that Tenant shall have the right to appeal a determination of
increased coverage by the Risk Manager to the City Council of Landlord within ten (10)
days of receipt of notice from the Risk Manager. Landlord and Tenant hereby waive any
rights each may have against the other on account of any loss or damage occasioned by
property damage to the Demised Premises, its contents, or Tenants trade fixtures,
equipment personal property or inventory arising from any risk generally covered by
insurance against the perils of fire, extended coverage, vandalism, malicious mischief,
theft, sprinkler damage, and earthquake sprinkler leakage. Each of the parties, on behalf
of their respective insurance companies insuring such property of either Landlord or
Tenant against such loss, waive any right of subrogation that it may have against the
other. The foregoing waivers of subrogation shall be operative only so long as available
in California and provided further that no policy is invalidated thereby.
6.3 Indemnification of Landlord. Tenant, as a material part of the
consideration to be rendered to Landlord under this Sublease, hereby waives all claims against
Landlord for damage to equipment or other personal property, trade fixtures, leasehold
improvements, goods, wares, inventory and merchandise, in, upon or about the Demised
Premises and for injuries to persons in or about the Demised Premises, from any cause arising at
any time. Tenant agrees to indemnify the Landlord, its officers, agents and employees against,
and will hold and save them and each of them harmless from, any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations, errors, omissions or
liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or
entity arising out of or in connection with the negligent performance of the work, operations or
activities of Tenant, its agents, employees, subcontractors, or invitees, provided for herein, or
arising from the use of the Demised Premises or the parking and common areas by Tenant or its
employees and customers, or arising from the failure of Tenant to keep the Demised Premises in
good condition and repair, as herein provided, or arising from the negligent acts or omissions of
Tenant hereunder, or arising from Tenant's negligent performance of or failure to perform any
term, provision covenant or condition of this Sublease, whether or not there is concurrent passive
or active negligence on the part of the Landlord, its officers, agents or employees but excluding
such claims or liabilities arising from the sole negligence or willful misconduct of the Landlord,
its officers, agents or employees, who are directly responsible to the Landlord, and in connection
therewith:
(a) Tenant will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs
and attorneys' fees incurred in connection therewith;
(b) Tenant will promptly pay any judgment rendered against the
Landlord, its officers, agents or employees for any such claims or liabilities arising out of
or in connection with the negligent performance of or failure to perform such work,
operations or activities of Tenant hereunder, and Tenant agrees to save and hold the
Landlord, its officers, agents, and employees harmless therefrom;
IRV#19554 v4
(c) In the event the Landlord, its officers, agents or employees is made
a party to any action or proceeding filed or prosecuted against Tenant for such damages
or other claims arising out of or in connection with the negligent performance of or
failure to perform the work, operation or activities of Tenant hereunder, Tenant agrees to
pay to the Landlord, its officers, agents or employees, any and all costs and expenses
incurred by the Landlord, its officers, agents or employees in such action or proceeding,
including but not limited to, legal costs and attorneys' fees.
7.0 ABANDONMENT AND SURRENDER.
7.1 Abandonment. Tenant shall not vacate or abandon the Demised Premises
at any time during the term of this Sublease; and if Tenant shall abandon, vacate or surrender the
Demised Premises or be dispossessed by process of law, or otherwise, any personal property
belonging to Tenant and left on the Demised Premises shall be deemed to be abandoned, at the
option of Landlord, except such property as may be mortgaged to Landlord.
7.2 Surrender of Sublease. The voluntary or other surrender of this Sublease
by Tenant or a mutual cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at the option of
Landlord, operate as an assignment to it of any or all of such subleases or subtenancies.
8.0 DAMAGE AND DESTRUCTION OF PREMISES. In the event of(a) partial
or total destruction of the Demised Premises during the term of this Sublease which requires
repairs to the Demised Premises, or (b) the Demised Premises being declared unsafe or unfit for
occupancy by any authorized public authority for any reason other than Tenant's act, use or
occupation, which declaration requires repairs to the Demised Premises, Landlord shall forthwith
make said repairs provided Tenant gives to Landlord thirty (30) days written notice of the
necessity therefor. No such partial destruction (including any destruction necessary in order to
make repairs required by any declaration made by any public authority) shall in any way annul or
void this Sublease except that Tenant shall be entitled to a proportionate reduction of Monthly
Rental while such repairs are being made, such proportionate reduction to be based upon the
extent to which the making of such repairs shall interfere with the business carried on by Tenant
in the Demised Premises. However, if during the last two (2) years of the term of this Sublease
the Demised Premises are damaged as a result of fire or any other insured casualty to an extent in
excess of twenty-five percent (25%) of the then replacement cost (excluding foundations),
Landlord may within thirty (30) days following the date such damage occurs terminate this
Sublease by written notice to Tenant. If Landlord, however, elects to make said repairs, and
provided Landlord uses due diligence in making said repairs, this Sublease shall continue in full
force and effect, and the Monthly Rental shall be proportionately reduced while such repairs are
being made as hereinabove provided. Nothing in the foregoing to the contrary withstanding, if
the Demised Premises or said building is damaged or destroyed at any time during the term
hereof to an extent of more than twenty-five percent (25%) of the then replacement cost
(excluding foundations) as a result of a casualty not insured against, Landlord may within thirty
(30) days following the date of such destruction terminate this Sublease upon written notice to
Tenant. If Landlord does not elect to terminate because of said uninsured casualty, Landlord
IRV#19554 v4 _1 Q_
shall promptly rebuild and repair the Demised Premises and/or the building and the Monthly
Rental shall be proportionately reduced while such repairs are being made as hereinabove
provided. If Landlord elects to terminate this Sublease, all rentals shall be prorated between
Landlord and Tenant as of the date of such destruction. In respect to any partial or total
destruction (including any destruction necessary in order to make repairs required by any such
declaration of any authorized public authority) which Landlord is obligated to repair or may elect
to repair under the terms of this Section, Tenant waives any statutory right it may have to cancel
this Sublease as a result of such destruction.
9.0 ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Sublease or
sublet the Demised Premises, or any interest therein, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. For purposes of this Sublease, an
assignment shall be deemed to include the transfer to any person or group of persons acting in
concert of more than twenty five percent (25%) of the present ownership and/or control of
Tenant, taking all transfers into account on a cumulative basis. Landlord may withhold its
consent to an assignment or sublease to a proposed assignee or sublessee, and Tenant agrees that
Landlord shall not be unreasonable for doing so, unless all the following criteria are met: (a) The
proposed assignee's or sublessee's general financial condition, including liquidity and net worth,
verified by audited financial statements prepared by a Certified Public Accountant in conformity
with Generally Accepted Accounting Principles is equal to or greater than that of Tenant; (b) the
proposed assignee or sublessee has a demonstrated merchandising capability equal to or greater
than that of Tenant as to the use for which the Demised Premises are leased; (c) the proposed
assignee or sublessee is morally and financially responsible; and (d) the failure of tenant's use of
the Demised Premises to fit the business plan of Landlord to promote tourism to the City of Palm
Springs. Any such assignment shall be subject to all of the terms and conditions of this Sublease
and the proposed assignee shall assmne the obligations of Tenant under this Sublease in writing
in form satisfactory to Landlord. The proposed assignee shall simultaneously provide to
Landlord an estoppel certificate in the form described in Section 12.2 hereafter. Consent by
Landlord to one assignment, subletting, occupation or use by another person shall not be deemed
to be a consent to any subsequent assignment, subletting, occupation or use by another person.
Any assignment or subletting without the prior written consent of Landlord shall be void, shall
constitute a material breach of this Sublease, and shall, at the option of Landlord, terminate this
Sublease. Neither this Sublease nor any interest therein shall be assignable as to the interest of
Tenant by operation of law.
Landlord shall be under no obligation to consider a request for Landlord's consent
to .an assignment until Tenant shall have submitted in writing to Landlord a request for
Landlord's consent to such assignment together with audited financial statements of Tenant and
the proposed assignee, a history of the proposed assignee's business experience and such other
information as required by Landlord to verify that the criteria for assignment as set forth herein
are met. If Landlord approves such assignment, Tenant shall pay to Landlord one-half(1/2) of
any consideration received by Tenant for such assignment. In addition, if Landlord determines
that the Monthly Rent payable to Landlord under this Sublease is less than the fair market rental
value, as determined by Landlord, Landlord shall have the right to condition its approval to an
assignment or subletting on the increase of Monthly Rent to the fair market rental value.
10.0 DEFAULT AND REMEDIES.
IRV#19554 v4
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10.1 Default by Tenant. In addition to the defaults described in Section 9.0
hereinabove, the occurrence of any one or more of the following events shall constitute a default
and breach of this Sublease by Tenant: (a) the failure to pay any rental or other payment required
hereunder to or on behalf of Landlord more than three (3) days after written notice from
Landlord to Tenant that Tenant has failed to pay rent when due; (b) the failure to perform any of
Tenants agreements or obligations hereunder (exclusive of a default in the payment of money)
where such default shall continue for a period of thirty (30) days after written notice thereof from
Landlord to Tenant which notice shall be deemed to be the statutory notice so long as such notice
complies with statutory requirements; (c) the vacation or abandonment of the Demised Premises
by Tenant; (d) the making by Tenant of a general assignment for the benefit of creditors; (e) the
filing by Tenant of a voluntary petition in bankruptcy or the adjudication of Tenant as a
bankrupt; (f) the appointment of a receiver to take possession of all or substantially all the assets
of Tenant located at the Demised Premises or of Tenants leasehold interest in the Demised
Premises; (g) the filing by any creditor of Tenant of an involuntary petition in bankruptcy which
is not dismissed within sixty (60) days after filing; or (h) the attachment, execution or other
judicial seizure of all or substantially all of the assets of Tenant or Tenant's leasehold where such
an attachment, execution or seizure is not discharged within sixty (60) days. Any repetitive
failure by Tenant to performi its agreements and obligations hereunder, though intermittently
cured, shall be deemed an incurable default. Two (2) breaches of the same covenant within a
sixty (60) day period, a notice having been given pursuant to (a) or (b) above for the first breach,
or three (3) of the same or different breaches at any time during the term of this Sublease for
which notices pursuant to (a) or (b) above were given for the first two (2) breaches shall
conclusively be deemed to be an incurable repetitive failure by Tenant to perform its obligations
hereunder.
In the event of any such default or breach by Tenant, Landlord may at any time
thereafter, without further notice or demand, rectify or cure such default, and any sums expended
by Landlord for such purposes shall be paid by Tenant to Landlord upon demand and as
additional rental hereunder. In the event of any such default or breach by Tenant, Landlord shall
have the right (i) to continue the Sublease in full force and effect and enforce all of its rights and
remedies under this Sublease, including the right to recover the rental as it becomes due under
this Sublease, or (ii) Landlord shall have the right at any time thereafter to elect to terminate the
Sublease and Tenants right to possession thereunder. Upon such termination, Landlord shall
have the right to recover from Tenant:
(i) The worth at the time of award of the unpaid rental which had been
earned at the time of termination;
(ii) The worth at the time of award of the amount by which the unpaid
rental which would have been earned after termination until the time of award exceeds
the amount of such rental loss that the Tenant proves could have been reasonably
avoided;
(iii) The worth at the time of award of the amount by which the unpaid
rental for the balance of the term after the time of award exceeds the amount of such
rental loss that the Tenant proves could be reasonably avoided; and
IRV#19554 v4 -12-
•
(iv) Any other amount necessary to compensate the Landlord for all the
detriment proximately caused by Tenants failure to perform its obligations under the
lease or which in the ordinary course of things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in subparagraphs (i)
and (ii) above shall be computed by allowing interest at three percent (3%) over the prime rate
then being charged by Bank of America, N.A. but in no event greater than the maximum rate
permitted by law. The worth at the time of award of the amount referred to in subparagraph (iii)
above shall be computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%), but in no event greater than
ten percent(10%).
As used herein "rental" shall include the Monthly Rental, percentage rental equal
to the average percentage rental paid or payable by Tenant for the last twelve (12) months or
such lesser period as Tenant has been open for business, other sums payable hereunder which are
designated "rental" or "additional rental" and any other sums payable hereunder on a regular
basis such as reimbursement for real estate taxes.
Such efforts as Landlord may make to mitigate the damages caused by Tenants
breach of this Sublease shall not constitute a waiver of Landlord's right to recover damages
against Tenant hereunder, nor shall anything herein contained affect Landlord's right to
indemnification against Tenant for any liability arising prior to the termination of this Sublease
for personal injuries or property damage, and Tenant hereby agrees to indemnify and hold
Landlord harmless from any such injuries and damages, including all attorney's fees and costs
incurred by Landlord in defending any action brought against Landlord for any recovery thereof,
and in enforcing the terms and provisions of this indemnification against Tenant.
Notwithstanding any of the foregoing, the breach of this Sublease by Tenant, or
an abandonment of the Demised Premises by Tenant, shall not constitute a termination of this
Sublease, 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 Sublease, 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 Sublease shall not prevent
Landlord from later terminating this Sublease or constitute a waiver of Landlord's right to do so.
10.2 No Waiver. Acceptance of rental hereunder shall not be deemed a waiver
of any default or a waiver of any of Landlord's remedies.
10.3 Landlord's Default. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no event later than
thirty (30) days after written notice by Tenant to Landlord and to the holder of any first mortgage
or deed of trust covering the Premises whose name and address shall have theretofore been
furnished to Tenant in writing, specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance then Landlord shall not be deemed in default if
Landlord commences performance within a (30) day period and thereafter diligently prosecutes
the same to completion. In no event shall Tenant have the right to terminate this Sublease as a
IRV#19554 v4
-13-
result of Landlord's default and Tenant's remedies shall be limited to damages and/or an
injunction.
11.0 CONDEMNATION. In the event a condemnation or a transfer in lieu thereof
results in a taking of any portion of the Demised Premises, Landlord may, or in the event a
condemnation or a transfer in lieu thereof results in a taking of twenty-five percent (25%) or
more of the Demised Premises, Tenant may, upon written notice given within thirty (30) days
after such taking or transfer in lieu thereof, terminate this Sublease. Tenant shall not be entitled
to share in any portion of the award and Tenant hereby expressly waives any right or claim to
any part thereof. Tenant shall, however, have the right to claim and recover, only from the
condemning authority (but not from Landlord), any amounts necessary to reimburse Tenant for
the cost of removing stock and fixtures. If this Sublease is not terminated as above provided,
Landlord shall use a portion of the condemnation award to restore the Demised Premises.
12.0 MISCELLANEOUS.
12.1 Entry and Inspection. Tenant shall permit Landlord and his agents to enter
into and upon the Demised Premises at all reasonable times for the purpose of inspecting the
same or for the purpose of maintaining the Demised Premises as required by the terms of this
Sublease or for the purpose of posting notices of nonliability for alterations, additions or repairs,
or for the purpose of placing upon the property in which the Demised Premises are located any
usual or ordinary "For Sale" signs or any signs for public safety as determined by Landlord.
Landlord shall be permitted to do any of the above without any rebate of rent and without any
liability to Tenant for any loss of occupation or quiet enjoyment of the Demised Premises
thereby occasioned. Tenant shall permit Landlord, at any time within six (6) months prior to the
expiration of this Sublease, to place upon the Demised Premises any usual or ordinary "For
Sublease" 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.
12.2 Estoppel Certificate. If, as a result of a proposed sale, assignment, or
hypothecation of the Demised Premises or the land thereunder by Landlord, or at any other time,
an estoppel certificate shall be requested of Tenant, Tenant agrees, within ten (10) days
thereafter, to deliver such estoppel certificate in the form attached hereto as Exhibit "C"
addressed to any existing or proposed mortgagee or proposed purchaser, and to the Landlord.
Tenant shall be liable for any loss or liability resulting from any incorrect information certified,
and such mortgagee and purchaser shall have the right to rely on such estoppel certificate and
financial statement.
12.3 Jurisdiction and Venue. The parties hereto agree that the State of
California is the proper jurisdiction for litigation of any matters relating to this Sublease, and
service mailed to the address of tenants set forth herein shall be adequate service for such
litigation. The parties further agree that Riverside County, California is the proper place for
venue as to any such litigation and Tenant agrees to submit to the personal jurisdiction of such
court in the event of such litigation.
IRV#19554 0 -14-
12.4 Partial Invalidity. If any term, covenant, condition or provision of this
Sublease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereof.
12.5 Successors in Interest. The covenants herein contained shall, subject to
the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators
and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally
liable hereunder.
12.6 No Oral Agreements. This (i) Sublease covers in full each and every
agreement of every kind or nature whatsoever between the parties hereto concerning this
Sublease, (ii) supersedes any and all previous obligations, agreements and understandings, if any,
between the parties, oral or written, and (iii) merges all preliminary negotiations and agreements
of whatsoever kind or nature herein. Tenant acknowledges that no representations or warranties
of any kind or nature not specifically set forth herein have been made by Landlord or its agents
or representatives.
12.7 Authority. In the event that Tenant is a corporation or a partnership, each
individual executing this Sublease 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
Sublease 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 Sublease is binding upon said corporation or partnership
in accordance with its terms. Tenant represents and warrants to Landlord that the entering into
this Sublease does not violate any provisions of any other agreement to which Tenant is bound!
12.8 Relationship of Parties. The relationship of the parties hereto is that of
Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any
way or for any purpose become a partner of Tenant in the conduct of Tenant's business or
otherwise, or a joint venturer with Tenant, and that the provisions of this Sublease and the
agreements relating to rent payable hereunder are included solely for the purpose of providing a
method whereby rental payments are to be measured and ascertained.
12.9 Nondiscrimination. Tenant herein covenants by and for itself, its heirs,
executors, administrators and assigns and all persons claiming under or through it, and this
Sublease is made and accepted upon and subject to the following conditions: That there shall be
no discrimination against or segregation of any person or group of persons on account of race,
sex, marital status, color, creed, national origin or ancestry, in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the Demised Premises herein leased, nor
shall the Tenant itself, or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the Demised
Premises.
12.10 Notices. Wherever in this Sublease it shall be required or permitted that
notice and demand be given or served by either party to this Sublease to or on the other, such
IRV 419554 v4 -15-
notice or demand shall be given or served in writing and shall not be deemed to have been duly
given or served unless in writing, and personally served or forwarded by certified mail, postage
prepaid, addressed, if to Landlord, to City of Palm Springs, P.O. Box 2743, Palm Springs,
California, 92263, Attn: City Manager, and if to Tenant, as specified in Section 1.7. Either party
may change the address set forth herein by written notice by certified mail to the other. Any
notice or demand given by certified mail shall be effective one (1) day subsequent to mailing.
12.11 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party shall impair such right or remedy or be construed as a waiver. A party's
consent to or approval of any act by the other party requiring the party's consent or approval
shall not be deemed to waive or render unnecessary the other party's consent to or approval of
any subsequent act. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Sublease.
12.12 Exhibits and Addenda. The Exhibits and Addenda attached to this
Sublease are made a part hereof as if fully set forth herein. In the event of a conflict between the
terms and provisions of an Addenda and the terms and provisions of this Sublease, the terms and
provisions of the Addenda shall prevail.
[SIGNATi.JRES ON NEXT PAGE]
IRV#19554 v4 -16-
IN WITNESS WHEREOF, the parties have duly executed this Sublease together with the
herein referred to Exhibits which are attached hereto, on the day and year first above written in
Palm Springs, California.
ATTEST: CITY OF PALM SPRINGS, a
municipal corporation —.
By
City Clerk City Manager s�
REVIEWED AND APPROVED
BURKE WILLIAMS & SORE`NSEN, LLP
By:
David J. le hire, Esq.
City Attorney
"�J —f k1
By:
Its:
By:
Its:
"TENANT"
IRV k 19554 v4 -17-
EXHIBIT "A"
LEGAL DESCRIPTION OF THE DEMISED PREMISES
That portion of the Southwest Quarter of the Northeast Quarter of the Southeast
Quarter of Section 14, T.4 S, R 4 E, described as follows:
Beginning at the Southwest corner of said Southwest Quarter of
the Northeast Quarter of the Southeast Quarter of Section 14, said
point also being the center line intersection of Hermosa Road and
Baristo Road, thence easterly along the south line of said
Southwest Quarter, also being said center line of Baristo Road 30
feet; thence northerly parallel to the west line of said Southwest
Quarter(center line of Hermosa Rd.) 40 feet to the True Point of
Beginning; thence continuing northerly parallel to said west line
430 feet; thence easterly parallel to said south line of said
Southwest Quarter, 250 feet; thence southerly parallel to said west
line, 122 feet; thence easterly parallel to said south line, 160 feet;
thence southerly parallel to said west line, 308 feet to a point 40
feet north, measured at right angles from said south line of said
Southwest Quarter; thence westerly along a line parallel with and
40 feet north of said south line, 410 feet to the True Point of
Beginning
EXHIBIT "A"
TO SUBLEASE
•
EXHIBIT B-1
PLOT PLAN OF DEMISED PREMISES
Tennis Center
248
122
160
429
339 Wock wall)
408
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SCHEAULE 11
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EXHIBIT "C"
ESTOPPEL CERTIFICATE
Tenant:
Landlord: CITY OF PALM SPRINGS, a
municipal corporation
Date of Sublease:
Demised Premises:
To:
The undersigned hereby certifies as follows:
1. The undersigned is the tenant ("Tenant") under the above-referenced Sublease
("Sublease") covering the above-referenced premises ("Demised Premises").
2. The Sublease constitutes the entire agreement between landlord under the
Sublease ("Landlord") and Tenant with respect to the Demised Premises and the Sublease has
not been modified, changed, altered or amended in any respect except as set forth above.
3. The term of the Sublease commenced on , 20 and, including any
presently exercised option or renewal term, will expire on 20 . Tenant has
accepted possession of the Demised Premises and is the actual occupant in possession thereof
and has not sublet, assigned or hypothecated its leasehold interest. All improvements to be
constructed on the Demised Premises by Landlord have been completed and accepted by Tenant
and any tenant construction allowances have been paid in fall.
4. As of this date, to the best of Tenant's knowledge, there exists no breach or
default, nor state of facts which, with notice, the passage of time, or both, would result in a
breach or default on the part of either Tenant or Landlord. To the best of Tenants knowledge, no
claim, controversy, dispute, quarrel or disagreement exists between Tenant and Landlord.
5. Tenant is currently obligated to pay Annual Rent in installments of$
per month, and such monthly installments have been paid not more than one month in advance.
In addition, the Sublease requires Tenant to pay percentage rent each month in the amount of
percent�°/u) and percentage rent has been paid through ,19 .
To the best of Tenants knowledge, no other rent has been paid in advance and Tenant has no
claim or defense against Landlord under the Sublease and is asserting no offsets or credits
IRV#19554 v4
EXHIBIT"C"
TO SUBLEASE
against either the rent or Landlord. Tenant has no claim against Landlord for any security or
other deposits except $ which was paid pursuant to the Sublease.
6. Tenant has no option or preferential right to lease or occupy additional space
within the Property of which the Demised Premises are a part. Tenant has no option or
preferential right to purchase all of any part of the Demised Premises nor any right or interest
with respect to the Demised Premises other than as Tenant under the Sublease. Tenant has no
right to renew or extend the term of the Sublease except as set forth in the Sublease.
7. Tenant has made no agreements with Landlord or its agent or employees
concerning free rent, partial rent, rebate of rental payments or any other type of rent or other
concession except as expressly set forth in the Sublease.
8. There has not been filed by or against Tenant a petition in bankruptcy, voluntary
or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or
arrangement under the bankruptcy laws of the United States, or any state thereof, or any other
action brought under said bankruptcy laws with respect to Tenant.
9. All insurance which Tenant is required to maintain under the Sublease has been
obtained by Tenant and is in full force and effect and all premiums with respect thereto have
been paid.
Dated this day of 20
By:
Its:
IRV#19554 0
EXHIBIT"C"
TO SUBLEASE
EXHIBIT "D"
RULES AND REGULATIONS
1. All loading and unloading of goods shall be done only at the times, in the areas
and through the entrances reasonably designated for such purposes by Landlord.
2. The delivery or shipping of merchandise, supplies and fixtures to and from the
Demised Premises shall be subject to such rules and regulations as in the reasonable judgment of
Landlord are necessary for the proper operation of the Demised Premises or of the Property
generally.
3. All of Tenant's refuse and rubbish shall be removed to central trash bins located
in the Property, at Tenants sole cost and expense.
4. No radio or television or other similar device audible outside the Demised
Premises shall be installed without obtaining in each instance the written consent of Landlord.
No aerial shall be erected on the roof or exterior walls of the Demised Premises or on the
grounds of the Property without first obtaining in each instance the written consent of Landlord
which consent shall not be unreasonably withheld or delayed. Any aerial so installed without
such written consent shall be subject to removal without notice at any time.
5. No loudspeakers, televisions, phonographs, radios or other devices shall be used
in a manner so as to be heard or seen outside of the Demised Premises without first obtaining in
each instance written consent of Landlord.
6. The outside sidewalks and loading areas immediately adjoining the Demised
Premises shall be kept clean and free from dirt and rubbish by Tenant to the reasonable
satisfaction of Landlord, and Tenant shall not place or permit any obstructions or merchandise in
such areas, except to the extent specifically permitted by the provisions of Tenants Sublease.
7. Tenant shall not burn any trash or garbage of any kind in or about the Demised
Premises or the Property generally.
8. Tenant will not allow animals, except seeing-eye dogs, in, about or upon the
Demised Premises.
9. Tenant shall not use, and shall not allow anyone else to use, the Demised
Premises as a habitation. Such prohibition shall include, without limitation, sleeping, eating or
bathing.
10. Tenant shall not place any rubbish or other matter outside any building within the
Property, except in such containers as are authorized from time to time by Landlord.
IRV 419554 v4
EXHIBIT"D"
TO SUBLEASE
EXHIBIT"B"
CONSTRUCTION OBLIGATIONS
Lessee shall construct the following improvements to the Center, at Lessee's sole cost, herein the
improvements. Should the City receive a contribution from the Agua Caliente Band of Cahuilla
Indians for the purpose of making improvements to the Center, the City shall deposit the funds in
the Disbursement Account, and disburse them in accordance with Section 5.1.3.
A. Required Improvements Prior to October 1 2002
1. Court surfacing repair. The Tenant shall repair the portions the surface of Courts
1 through 9 that show evidence of water and sand damage. All future court
resurfacing shall be the responsibility of the Tenant
2. All windscreens need to be replaced with permeable material to reduce dust on
the courts and increase privacy. Open mesh vinyl on all exterior sides, estimated
to be 23,100 total square feet.
3. All lights shall be painted and lowered for improved lighting.
4. All fences shall be painted green or black electropaint.
5. Tenant shall lower interior fences between courts to 3 1/2' to 4' from the current
6', from the first light pole to the last light pole, a distance of 80 feet for each
court.
B. Discretionary Improvements
1. Tenant may install a"keypad" gate lock to allow play after hours or in the
summer while maintaining the overall security at the facility.
2. Tenant may install benches with awnings between courts.
3. Tenant shall participate in the City's annual slurry seal program, and reimburse
the City for its pro rata share of the parking lot maintenance cost for the slurry on
the third year of this Sublease.
4. Tenant may install a new sign for the Center, subject to staff approval by the
City's Parks and Recreation Department and the normal City Planning
Department process.
IRV 4195540
EXHIBIT"E"
TO SUBLEASE
C. Parking Improvements within 3 years
1. Tenant shall reslurry the common area parking lot. Tenant may participate in
City's annual slurry program and reimburse City for Tenant's prorata share of
parking lot, taking into account the Adjacent Property lessee participation.
D. Building Improvements within 2 years
1. Tenant shall update and modernize the pro shop area, repainting, recarpeting and
making similar improvements.
2. Tenant may replace the glass in the pro shop with laminated security glass.
3. Tenant may upgrade the bathrooms making them ADA complaint and add
showers. This will be required if(a) Tenant makes major structural changes, as
required by law, or (b) if grant funds are available for financing the
improvements. City will cooperate as necessary to obtain available grant funds.
IRV#19554 0
EXHIBIT"E"
TO SUBLEASE
EXHIBIT"F"
IMPROVEMENT SCHEDULE
Tenant shall construct the improvements listed in Section A of Exhibit "E", Construction
Obligations, noted as "Prior to October 1, 2002"between the commencement of the Sublease on
May 1, 2002 and the date of occupancy, October 1, 2002.
The schedule of the construction of the additional improvements noted in Exhibit"E" shall be at
the discretion of the Tenant except as follows.
1. All capital improvements to the pro shop building must happen within twenty-four (24)
months of the commencement of Tenant's operation(October 1, 2004)
2. The parking lot will be reslurred within 36 months of the commencement of Tenant's
operation(October 1, 2005).
IRV#19554 v4 EXHIBIT'F"
TO SUBLEASE
Exhibit G
DRAW REQUEST #1
Date:
PROJECT:
Tennis Center Improvements
1300 E. Baristo Road
Palm Springs, CA 92262
Line Item Item Description Approved Prior Cum Total To
Budget Expense Date
ITEMS COMPLETED THIS DRAW:
TOTAL ITEMS COMPLETED THIS DRAW:
FUNDS CONTROL SUMMARY
ITEMS UNCOMPLETED THIS DRAW: $Amount %
TOTAL ITEMS UNCOMPLETED THIS DRAW:
TOTAL THIS DRAW:
TOTAL PREVIOUS DRAWS:
TOTAL PROJECT (ALL ITEMS COMPLETED AND REMAINING):
I hereby certify that the work items described above have been completed to my satisfaction. Any
specification and/or price changes in this draw are satisfactory and are accepted.
Tenant's Representative Date
City of Palm Springs Authorized Signature Date
PALM S
O A
City of Palm Springs
e Office of the Mayor
A00 3200 Tahgma Canyon Way • Palm Springs,Cahfornia 92262
C \P TEL(760)323-8200 • FAX(760)323-8207 •TDD(760)864-9527
gOFOR
November 1, 2001
Mr. Richard M. Milanovich EXHIBIT "H" (4 pages)
Chairman, Tribal Council
Agua Caliente Band of Cahuilla Indians
600 E. Tahquitz Canyon Drive
Palm Springs, CA 92262
Re: Temporary Financial Support for Palm Springs Tennis Center
Dear Mr. Milanuvieh:
The Palm Springs Redevelopment Agency (the "Agency") entered into a Disposition and
Development Agreement("DDA")dated October 24, 1994,and amended August 8, 1996, with the
Agua Caliente Band of Cahuilla Indians(the"Tribe")to assist the Tribe with the development of a
casino in the vicinity of the Spa Hotel and Resort.
The DDA is now being further amended to provide that the Agency will assist the Tribe with the
acquisition of a parcel now owned by the Walter Family Trust and operated as a part of the Hilton
Hotel and occupied by Mr.KurtHaggstrom,Plaza Tennis Center,who conducts aprofessional tennis
facility on the parcel.
It is the intent of all parties to relocate Mr. Haggstrom and the Plaza Tennis Center("Operator")
to the tennis center facility owned by the City of Palm Springs at 1300 East Baristo Road (the
"Tennis Center"). Such relocation will not occur until October 1,2002,and in the interim,the City
is unable to put a long-term operator in business at the Tennis Center. Moreover,the City's current
costs to keep the Tennis Center open are approximately$1,500 per month.
Accordingly,the Tribe has agreed to pay the City$1,500 per month,less any rent City receives from
any operations at the Center(prorated for any period less than 30 days),commencing from the date
of Agency approval of the DDA until October 1,2002. Such amounts will be payable on the first
day of each month at the office of the Director of Finance of the City.
Post Office Box 2743 0 Palm Springs, California 92263-2743
Mr. Richard Milanovich
Chairman, Tribal Council
November 1, 2001 - Page 2
Re: Palm Springs Tennis Center
It is the further understanding of the parties that provided the Tribe obtains a waiver from Operator
of all claims for compensation,goodwill,relocation benefits,or other compensation against Agency,
Tribe will have satisfied its relocation responsibility to Operator by facilitating the Third
Amendment to Tennis Concession License Agreement between Walter and Operator, a copy of
which is attached to this letter agreement and included by reference.
This letter agreement is intended to be binding on the parties, and will be so, when countersigned
by the parties' representatives in the space provided below.
Agua Caliente Band of Cahuilla Indians City of Palm Springs
By: By:
Chairman Richard M. Milanovich Mayor William G. Kleindienst
Attest: Attest:
Attachment: Third Amendment to Tennis
Concession License Agreement
DJA:mme
THIRD AMENDMENT TO TENNIS CONCESSION LICENSE AGREEMENT
This Third Amendment to the Tennis Concession License Agreement ("Third Amendment")
is dated as of November 1, 2001 and amends the Tennis Concession License Agreement dated
June 9, 1987, as amended, ("License Agreement") by and between Kurt Edward Haggstrom
("Licensee") and Desert Associates, a California Limited Partnership as predecessor in interest to
Walter Family Partnership, a California Limited Partnership ("Licensor") with reference to the
following facts:
A. Licensor and Licensee now desire to amend the terms of the License Agreement.
B. The Agua Caliente Band of Cahuilla Indians ("the Tribe") will acquire the property where
the tennis courts and the tennis facilities described in the License Agreement are located
and as part of that acquisition Licensor will assign the License Agreement, as amended,
to the Tribe.
Therefore, Licensor and Licensee for good and valuable consideration. ti:s receipt and
sufficiency of which is hereby acknowledged, hereby agree as follows:
1. The term of the License Agreement shall be fixed through May 31, 2002 and shall
thereafter he on a month to month basis through the end of the term, i.e., January 31,
2003.
2. In accordance with a meeting held on October 19, 2001 between Licensor, Licensee and
the Tribe, represented by its Chief Operating Officer, Tim Taylor, it is understood that
Licensor upon closing of the transaction to transfer title to the Tribe will also assign the
License Agreement, as amended, to the Tribe with the Licensee recognizing such
assignment and agreeing to it.
3. Licensee agrees that upon a payment to the Licensee of Twenty-five Thousand'Dollars
($25,000.00) on or before May 31, 2002 that any and all good will, value of remaining
capital improvements and any costs of moving his tennis concession business has been paid
for in full with the Licensee agreeing to make no further claims as the result of the Tribe
acquiring the property, either against the Tribe or against the Licensor.
4. The Licensee acknowledges that at such time as an Assignment of the License Agreement
is made to the Tribe, there will be no further documents necessary for the Licensee to sign
evidencing such assignment. The Licensor agrees to give written notice to the Licensee
when such assignment occurs.
5. Upon assignment of the License Agreement to the Tribe, it is understood the Tribe will
not operate a competing tennis facility through May 31, 2005. The existing tennis courts
will not be used for guests or memberships unless Licensee is given the opportunity to
continue his services for such facility.
6. This Agreement only becomes effective upon the transfer of the real property containing
the tennis facility to the Tribe.
7. Except as amended by this Third Amendment to the License Agreement, the License
Agreement, as amended, shall remain in full force and effect.
LICENSER:
Dated:_l\-a - 01 c —�
KURT EDWARD HAG STROM
LICENSOR:
Dated: WALTER FAMILY PARTNERSHIP,
a California Limi Partnership
By: WAL OTEL CORP.,
a Calif ration
By
AB ADA
Vice President