HomeMy WebLinkAbout04022 - PSPB DEMUTH BATTING CAGE Page 1 of 1
Kathie Hart
From: Jay Thompson
Sent: July 21, 2008 5:08 PM
To: Kathie Hart
Subject: FW: A4022 PSPD Expires 10-01-2008
Please close contract file. J
From: Sharon Heider
Sent: Monday, July 21, 2008 5:04 PM
To: Jay Thompson
Cc: David Ready
Subject: RE: A4022 PSPD Expires 10-01-2008
No we will not be extending this lease The contractor walked away from the operation sometime ago.
M•
F ywr
Sharon Heider,ASL,A l�
Director of Parks and Recreation �p
City
1u Palm Springs
4U0.lox 743 Wuy Telephone: (760)323-8279
Y U.L3ox 27-43 Pox (76U)"23-827Y ,Ow
Palm Springs,CA 92263-2 14 3 TDD (760)864-9527
www_,p;dmspringS=ca go! Sharon Ueidornnj Imspnngs_ca goy
From: Jay Thompson
Sent: Monday, July 21, 2008 2:25 PM
To: Sharon Heider
CC: David Ready
Subject: A4022 PSPD Expires 10-01-2008
Sharon,
Attached Lease Agreement with PSPB for the Demouth Park batting cages and release space expires 10-01-
2008 and has no provision for an extended term.
Will you be bringing forward in September a new agreement for City Council approval or? Please advise.
THANKS, Jay.
James Thompson, City Clerk
City of Palm Springs, California
TEL(760) 323-8204
07/21/08
P.S.P.B. Inc.
Demuth Park Batting Cage Lse
AGREEMENT #4022
M06228, 9-16-98
L E A S T
THIS LEASE ("Lease") _ is made and entered into this day of
! e.D4�� bP2. , 19 a' , by and between the CITY OF PALM SPRINGS, a
M,nj.Q:Lpal corporation ("Landlord") , and P_S.P. . Inc. . A California
corporation
("Tenant') .
1.0 LEASE summRy. certain fundamental lease provisions are presented
in this Section and represent the agreement of the parties hereto, subject to
further definition and elaboration in the respective referenced Sections and
elsewhere in this Lease. In the event of any conflict between any fundamental
lease provision and the balance of this Lease, the latter shall control.
References to specific Sections are for convenience only and designate some of
the Sections where references to the particular fundamental lease provisions may
appear.
1.1 Demised Premises. The "Demised Premises" shall refer to that
certain real property located in the County of Riverside, State of California,
as more particularly described in Exhibit "A" hereof together with the
improvements located thereon and as depicted on the Plot Plan attached as Exhibit
"B" hereof.
1.2 Lease commencement Date. October 1 , 1998. Term: ten (10)
years . (See Section 2.1).
1.3 Extension Options. N/A options for a term of
N/A years each. (See Section 2.2)
1.4 Monthly Rental. $ See Exhibit "F" (See Section 3.1) .
Percentage Rental: t per mon�t, OF Tenant's gross sales. (See
- Section 3.2).
1.5 Security Deposit.. $ N/A (See Section 3.10).
1.6 Use of Demised Premises. Ei ht-Station
ItAtin_ g cage•facili y-wi -square- o0 ofTltr
(See Section 4.1).
1.7 Tenant's Address for Notices.
P.S.P.,B. Inc.
Palm rI uite n 5 L/�
1.8 If Section 4.6 of this Lease relating to charitable leases
is applicable, please mark here . If Section 4.6 is applicable, the fair
market rental value of the Deatis�remises is $
2.0 TERM.
2.1 Initial Term. The initial term of this Lease shall commence
on the date specified in Section 1.2 ("Commencement Date") and shall continue for
the period specified therein unless earlier terminated as provided herein.
2.2 Option Term. Tenant is given the option(s) to extend the
term on all of the provisions contained in this Lease for the period specified
F3=61099999=300U2077 MA MMSM
In Section 1.3 ("extended term") following the expiration of the initial term or
any other extended term properly exercised hereunder, by giving notice of
exercise of the option ("option notice") to Landlord at least one hundred twenty
(120) days but not more than six (6) months before the expiration of the initial
term or any other extended term properly exercised hereunder. Provided that, if
Tenant is in default on the date of giving the option notice, the option notice
shall be totally ineffective, or if Tenant is in default on the date the extended
term is to commence, the extended term shall not commence and this Lease shall
expire at the end of the initial term or properly exercised extended term.
2.3 Time. Time is of the essence of this Lease.
2.4 Force Weirs. If either party hereto shall be delayed or
prevented from the performance of any act required hereunder by reason of acts
of Cod, strikes, lockouts, labor troubles, inability to procure materials,
restrictive governmental laws or regulations or other cause without fault and
beyond the control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay, provided such party provides the other
party written notice of such event within ten (10) days of the commencement of
the delay; provided, however, nothing in this Section shall excuse Tenant from
the prompt payment of any rental or other charge required of Tenant hereunder
except as may be expressly provided elsewhere in this Lease.
2.5 Termination By Landlord. Landlord shall. have the right to
terminate this Lease 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 germinates this Lease pursuant to this Section,
Landlord shall pay Tenant the unamortized portion of the Improvement Costs that
are amortized pursuant to Section 5.1. If Landlord terminates this Lease 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, lose of goodwill and relocation benefits, inverse
condemnation or the taking of property and Landlord shall have no obligation to
pay Tenant therefor.
2.6 Holding Over. Any holding over after the expiration of the
term of this Lease, with the consent of Landlord, express or implied, shall be
construed to be a tenancy from month to month, cancelable upon thirty (30) days
written notice, and at a rental equal to one hundred fifty percent (150%) of the
last applicable Monthly Rental and upon terms and conditions as existed during
the last year of the term hereof.
3.0 RENTAL.
3.1 Monthly Rental. Tenant shall pay to Landlord, during the
term of this Lease from and after the commencement Date as monthly rental
("Monthly Rental") for the Demised Premises the sum specified in Section 1.4
hereof, which sum shall be paid in advance on the first day of each calendar
month. In the event the Commencement Date does not occur on the first day of a
calendar month, the Tenant shall pay the rental for the fractional month on the
Commencement Date on a per diem basis (calculated on a thirty-day month) . All
rental to be paid by Tenant to Landlord shall be in lawful money of the United
States of America and shall be paid without deduction or offset, prior notice or
demand at the address designated in Section 12.10 hereof.
3.2 Percentage Rental.
(a) In addition to the Monthly Rental hereinabove agreed to
be paid by Tenant, Tenant: shall and will pay to Landlord at the time and
Fs2127MO99999.3000X2=00.t a3105198 _2_
in the manner herein specified an additional rental (sometimes referred to
herein as "percentage rental") a sum equal to the difference between (A)
the product of the Percentage Rental Rate specified in Section 1.4 above,
times the amount of Tenant's gross sales made in, upon, or from the
Demised Premises during each month of the term hereof, less (B) the
aggregate amount of the Monthly Rental previously paid by Tenant for said
month.
(b) Within fifteen (15) days after the end of each calendar
month of the term hereof, commencing with the fifteenth (15th) day of the
month following the Commencement Date, and ending with the fifteenth
(15th) day of the month next succeeding the last month of the Lease term,
Tenant shall furnish to Landlord a statement in writing, certified by
Tenant to be correct, showing the total gross sales made in, upon, or from
the Demised Premises during the preceding calendar month (or fractional
month at the beginning of the term if the Commencement Date is other than
the first day of a month), and shall accompany each such statement with a
payment to Landlord equal. to said percentage of the total monthly gross
sales made in, upon, or from the Demised Premises during each calendar
.- month, less the Monthly Rent for each such calendar month (or fractional
month, if applicable) , if previously paid.
(c) The term "gross sales" as used herein means the total
.gross receipts of all goods, wares and merchandise sold and leased
including the actual charges for all services performed by Tenant and fees
charged by Tenant and by anyone including any subtenant, licensee or
concessionaire in, at, from, or arising out of the use of the Demised
Premises, whether wholesale or retail, whether for cash or credit, or
otherwise, and including the value of all consideration other than money
received for any of the foregoing, without reserve or deduction or
inability or failure to collect, including but not limited to sales,
.. leases and services. Each installment or credit sale shall be treated as
a sale for the full price in the month during which such sale is made,
irrespective of whether or when Tenant receives payment therefor. Gross
sales shall include any amount allowed upon any "trade-in," the full
retail price of any merchandise delivered or redeemed for trading stamps
or coupons and alI deposits not refunded to purchasers. Gross Sales shall
not include sales taxes, so-called luxury taxes, consumers excise taxes,
gross receipts taxes and other similar taxes now or hereafter imposed upon
the sale of merchandise or services, but only if collected separately from
the selling price of merchandise or services and collected from customers.
(d) The Tenant shall keep at the Demised Premises (and shall
require any permitted subtenant to keep at the Demised Premises) full,
complete and proper books, records and accounts of its daily gross sales,
both for cash and on credit, at any time operated in the Demised Premises.
The Landlord and its agents and employees shall have the right at any and
all times, during regular business hours, to examine and inspect all of
the books and records of the Tenant, including any sales tax reports
pertaining to the business of the Tenant conducted in, upon, or from the
Demised Premises, for the purpose of investigating and verifying the
accuracy of any statement of gross sales and to cause an audit of the
business of Tenant to be made by a certified public accountant of
Landlord's selection. If the statement of gross sales previously made to
Landlord shall be found to be inaccurate, then and in that event, there
shall be an adjustment and one party shall pay to the other an demand such
sums as may be necessary to settle in full the accurate amount of said
percentage rental that should have been paid to Landlord for the period or
periods covered by such inaccurate statement or statements. If said audit
shall disclose an inaccuracy of greater than three percent (3i) error with
respect to the amount of gross sales reported by Tenant for the period of
rsz 6\09r999-wamzvmao.1 03i05198 -3-
said report, then the Tenant shall immediately pay to Landlord the cost of
such audit; otherwise, the cost of such audit shall be paid by Landlord.
3.3 Cost of Living Adjustment. Upon each anniversary date of the
Commencement Date or if the Commencement Date is not on the first day of a month,
then on the first day of the next calendar month, the Monthly Rental shall be
adjusted in proportion to changes in the Consumer Price Index. Such adjustment
shall be made by multiplying the original Monthly Rental by a fraction, the
numerator of which is the value of the Consumer Price Index for the calendar
month three (3) months preceding the calendar month for which such adjustment is
to be made and the denominator of which is the value of the Consumer Price Index
for the same calendar month immediately prior to Commencement Date. For example,
if the adjustment is to occur effective June 1, 1989, the index to be used for
the numerator is the index for the month of March 1989 and the index to be used
for the denominator is the index for the month of March preceding the
Commencement Date. However, in no event shall the rent be reduced below the
Monthly Rental in effect immediately preceding such adjustment. The "Consumer
Price Index" to be used in such calculation is the Consumer Price Index, All
Urban Consumers (All Items), for the Los Angeles-Anaheim-Riverside Metropolitan
Area, published by the United States Department of Labor, Bureau of Labor
Statistics (1982-84 - 100) . If both an official index and one or more unofficial
.indices are published, the official index shall be used. If said Consumer Price
Index is no longer published at the adjustment date, it shall be constructed by
conversion tables included in such new index. .
3.4 Additional Rental. For purposes of this Lease, all monetary
obligations of Tenant under this Lease, including, but not limited to, insurance
premiums, property taxes, maintenance expenses, late charges and utility costs
shall be deemed to be additional rental.
3.5 Real Property Taxes. In addition to all rentals herein -
reserved, Tenant shall pay, at the election of Landlord, either directly to the
taxing authority or to Landlord, annual real estate taxes and assessments levied
upon the Demised Premises (including any possessory interest taxes) , as well as
taxes of every kind and nature levied and assessed in lieu of, in substitution
for, or in addition to, existing real property taxes. 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 Lease has expired and
Tenant has vacated the Demised Premises, when the final determination is made of
Tenant's share of such. taxes and assessments, Tenant shall immediately pay to
Landlord the amount of any additional sum owed.
3.6 Personal Property Taxes. During the term hereof Tenant shall
pay prior to delinquency all taxes assessed against and levied upon fixtures,
furnishings, equipment and all other personal property of Tenant contained in the
Demised Premises, and when possible Tenant shall cause said fixtures,
furnishings, equipment and other personal property to be assessed and billed
separately from the real property of Landlord.
3.7 utilities. Tenant shall pay before delinquency all charges
for water, gas, heat, electricity, power, sewer, telephone service, trash removal
and all other services and utilities used in, upon, or about the Demised Premises
by Tenant or any of its subtenants, licensees, or concessionaires during the term
of this Lease.
3.8 Late Payment. Tenant hereby acknowledges that late payment
by Tenant to Landlord of rental. or other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which is
extremely 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
PS212761099999-30D0\2022700.1 03/05/98 -4-
subject to a five percent (St) 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 lose suffered by such late payment by
Tenant.
3.9 Interest. Any sum to be paid pursuant to the terms of this
Lease not paid when due shall bear interest from and after the due date until
paid at a rate equal to three percent (3t) over the reference rate being charged
by Bank of America, N.A. from time to time during such period so long as the rate
does not exceed the maximum non-usurious rate permitted by law in which case
interest shall be at the maximum non-usurious rate allowed by law at the time the
sum became due.
3.10 Security Deposit. . Tenant contemporaneously with the
execution of this Lease, has deposited with Landlord the sum specified in Section
1.5 hereof, receipt of which is hereby acknowledged by Landlord, said deposit
being given to secure the faithful performance by the Tenant of all terms,
covenants, and conditions of this Lease by the Tenant to be kept and performed
during the term hereof. Tenant agrees that if the Tenant shall fail to pay the
rent herein reserved or any other sum required hereby promptly when due, said
deposit may, at the option of the Landlord (but Landlord shall not be required
to) be applied to any rent or other sum due and unpaid, and if the Tenant
violates any of the other terms, covenants, and conditions of this Lease, said
deposit may, at Landlord's option, be applied to any damages suffered by Landlord
as a result of Tenant's default to the extent of the amount of the damages
suffered.
Nothing contained in this Section shall in any way diminish or be
construed as waiving any of the Landlord's other remedies as provided in Section
10.0 hereof, or by law or in equity. Should the entire security deposit, or any
portion thereof, be appropriated and applied by Landlord for the payment of
overdue rent or other sums due and payable to Landlord by Tenant hereunder, then
Tenant shall, on the written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore said security deposit to its original
amount, and Tenant's failure to do so within five (5) days after receipt of such
demand shall constitute a breach of this Lease. Should Tenant comply with all
of the terms, covenants, and connditions of this Lease and promptly pay all of the
rental herein provided for as it falls due, and all other sums payable by Tenant
to Landlord hereunder, said security deposit shall be returned in full to Tenant
at the end of the term of this Lease, or upon the earlier termination of this
Lease as specified herein except in the event the Demised Premises are sold as
a result of the exercise of any power of sale under any mortgage or deed of
trust, in which event this Lease shall be automatically amended to delete any
reference to this Section and Tenant shall be entitled to immediate reimbursement
of its security deposit from the party then holding said deposit.
4.0 USE OF THE PREMISES.
4.1 Permitted 7se. The Landlord hereby leases to Tenant and
Tenant hires from Landlord the Demised Premises with appurtenances as defined
herein, for the purpose of conducting thereon only the use specified in Section
. 1.6 of this Lease and for no other use.
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. Tenant shall not use, or permit to be used, the Demised
Premises or any part thereof .for the installation or on-premises use of any
P=761099999-3000120=00.1 M/06/9E _5_
vending machine, gaming machine or video or arcade game unless expressly
permitted by this Lease.
4.3 Compliance with Laws. Tenant shall, at his sale 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. Tenant's violation of law shall
constitute an incurable default under this Lease. The judgment of any court of
competent jurisdiction, or the admission of Tenant in any action or proceeding
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any such order or statute in said use, shall be conclusive of that fact
as between the Landlord and Tenant.
Tenant shall not engage in any activity on or about the Demised
Premises that violates any Environmental Law, and shall promptly, at Tenant's
sole cost and expense, take all investigatory and/or remedial action required or
ordered by any governmental agency or Environmental Law for clean-up and removal
of any contamination involving any Hazardous Material created or caused directly
or indirectly by Tenant. The term "Environmental Law" shall mean any federal,
state or local law, statute, ordinance or regulation pertaining to health,
industrial hygiene or the environmental conditions on, under or about the Demised
Premises, including, without limitation, (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections
9601 at seq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA") ,
42 U.S.C. Sections 6901 at seq.; (iii) California Health and Safety Code Sections
25100 at seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986,
California Health and Safety Code Section 25249.5 at 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 at
seq.; (viii) California Water Code Section 1300 at seq.; and (ix) California
.Civil Code Section 3479 at seq. , as such laws are amended and the regulations and
,.Civil
codes applicable thereto. The term "Hazardous Material" includes,
without limitation, any material or substance which is (i) defined or listed as
a "hazardous waste", "extremely hazardous waste", "restrictive hazardous waste"
or "hazardous substance" or considered a waste, condition of pollution or
nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or
fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of
California to cause cancer and/or reproductive toxicity. It is the intent of the
parties hereto to construe the terms "Hazardous Materials" and "Environmental
Laws" in their broadest sense. Tenant shall provide all notices required
Pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California
Health and Safety Code Section. 25249.5 at 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 Tenant's approval
and without any liability to Tenant.
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 Tenant's 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 as is customary for
F9ZU76\099999-30=2022700.1 03/05/98 _6_
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 (a) 9:00 a.m. through 6:00 p.m. at least five days
per week or (b) the hours of 70% of the number of tenants in the Demised
Premises; provided, however, that 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. It is the intention of Landlord that the Demised Premises be
open during evening hours to promote business in the City of Palm Springs and,
therefore, Tenant shall participate in any program established by Landlord to
provide evening shopping and entertainment, which program may be administered by
the Downtown Business Improvement District or such other entity that may be
designated by the Landlord.
4.6 Charitable Leases. The provisions of this Section are
required by Resolution No. 14517 of the City Council and shall only apply if so
indicated in Section 1.8. Tenant hereby represents and warrants to Landlord that
Tenant is exempt from federal income taxation pursuant to Internal Revenue Code
Sections 501(c) (1) and/or 501(c) (3) and that Tenant's use of the Demised Premises
as specified in Section 1.6 is a. tax exempt function. Tenant hereby acknowledges
• that the Monthly Rent is below fair market rental rates and that the fair market
rental value of the property is as specified in 'Section 1.8. Prior to the
execution of this Lease, Tenant has provided Landlord with a proposed social
program for which the Tenant intends to use the Demised Premises ("Program") .
On each anniversary of the Commencement Date, Tenant shall submit to Landlord a
report, in a form and content satisfactory to Landlord, setting forth Tenant's
progress in meeting the provisions of the Program during that year. If Landlord
is not satisfied with the Tenant's performance, Landlord may terminate this Lease
upon thirty (30) days advance written notice•to Tenant or increase the Monthly
Rent to the fair market rental for the Demised Premises as specified in Section
1.8 (increased pursuant to Section 3.3, if applicable). If Landlord elects to
terminate this Lease, Landlord shall pay Tenant the unamortized portion of the
Improvement Costs which are amortized pursuant to Section S.I. If Landlord
elects to terminate this Lease 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,
relocation benefits, inverse condemnation, or the taking of property and Landlord
shall have no obligation to pay Tenant therefor.
4.7 Rules and Regulations. Tenant shall faithfully observe and
comply with the rules and regulations that Landlord shall from time to time
promulgate and/or modify. 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.
4.8 Downtown Business Improvement District. Tenant shall join,
at its sole cost and expense, the Downtown Business Improvement District prior
to the commencement of this Lease and shall remain a member in good standing
throughout the term of this Lease.
5.0 ALTERATIONS AND REPAIRS.
5.1 Alterations and Fixtures. 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
FS2U76109999930W12022700.1 0310998 -7-
Lease 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 Tenant's 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 initial term of this Lease on a straight line basis for the
Purposes specified in Sections 2.5 and 4.6.
5.2 Maintenance and Repair. Tenant shall, subject to Landlord's
obligations hereinafter provided, at all times during the term hereof, and at
Tenant's sole cost and expense, keep, maintain and repair the Demised Premises,
and other improvements within the Demised Premises in good and sanitary order,
condition, and repair (except as hereinafter provided) including without
limitation, the maintenance and repair of any store front, doors, window
casements, glazing, heating and air. conditioning system, plumbing, pipes,
electrical wiring and conduits. Tenant shall also at its sole coat 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 goad and sanitary order, condition and repair, and Tenant agrees on the last
day .of said term or sooner termination of this Lease 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.
Landlord shall maintain in good repair the exterior walls, roof and
sidewalks. Tenant agrees that it will not, nor will it authorize any person to,
go onto the roof of the building of which the Demised Premises are a part without
the prior written consent of Landlord. Said consent will be given only upon
Landlord's satisfaction that any repairs necessitated as a result of Tenant's
action will be made by Tenant at Tenant's expense and will be made in such a
manner so as not to invalidate any guarantee relating to said roof. Landlord
shall not be required to make any repairs to the exterior walls, roof and
sidewalks unless and until Tenant has notified Landlord in writing of the need
for such repairs and Landlord shall have had a reasonable period of time
thereafter to commence and complete said repairs.
5.3 Free from Liens. Tenant shall keep the Demised Premises free
from any liens arising out of—any work performed, material furnished, or
obligation incurred by Tenant or alleged to have been incurred by Tenant.
5.4 Construction Obligations. Landlord and Tenant agree to
construct the improvements to the extent shown on the attached Exhibit "E"
(Landlord's Work" and "Tenant's Work," as applicable) at each party's sole cost
and expense.
FS2XV61099919-3000120M00.1 03/05/98 _g_
6.0 INSURANCE AND INDE2WIFICATION.
6.1 Insurance Provided by Landlord. Landlord shall maintain fire
and extended coverage insurance throughout the term of this Lease in an amount
equal to at least ninety percent (9O%) of the replacement value of the building
containing 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 shall
qualify for full fire protective credits allowed by the fire insurance
rating and regulatory body in whose jurisdiction the Demised Premises are
located.
(b) Tenant to Provide Personal Property Insurance. Tenant,
at its expense, shall maintain fire and extended coverage insurance
written on a per occurrence basis on its trade fixtures, equipment,
personal property and inventory within the Demised Premises from loss or
damage to the extent of their full replacement value and shall provide
plate glass coverage.
(c) Tenant to Provide Liability Insurance. During the
entire term of this Lease, the Tenant shall, at the Tenant's sole cost and
expense, but for the mutual benefit of Landlord and Tenant, maintain
comprehensive general liability insurance insuring against claims for
bodily injury, death or property damage occurring in, upon or about the
Demised Premises and on any sidewalks directly adjacent to the Demised
Premises written on a per occurrence basis in an amount not less than
either (i) a combined single limit of ONE MILLION DOLLARS ($1,000,000.00)
for bodily injury, death, and property damage or (ii) bodily injury limits
of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00
products and completed operations and property damage limits of
$100,000.00 per occurrence and $250,000.00 in the aggregate; provided,
however, if Landlord so elects Landlord may provide such insurance and, in
such event, Tenant agrees to pay its pro rata share of the cost of said
insurance on the same basis as provided in Section 6.1 above.
(d) Tenant to Provide Worker's Compensation Insurance.
Tenant shall, at the Tenant's sole cost and expense, maintain a policy of
worker's compensation insurance in an amount as will fully comply with the
laws of the State of California and which shall indemnify, insure and
provide legal defense for both the Tenant and the Landlord against any
loss, claim or damage arising from any injuries or occupational diseases
occurring to any worker employed by or any persons retained by the Tenant
in the course of conducting Tenant's business in the Demised Premises.
(e) General. Provisions Applicable to Tenant's Insurance.
All of the policies of insurance required to be procured by Tenant
pursuant to this Section 6.2 shall be primary insurance and shall name the
F=6109999930=20=00.1 03/05/98 _9_
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 Best's Insurance Guide. In the
event the Risk Manager of Landlord ("Risk Manager") determines that (i)
the Tenant's activities .in the Demised Premises creates an increased or
decreased risk of lose to the Landlord, (ii) greater insurance coverage is
required due to the passage of time, or (iii) changes in the industry
require different coverages be obtained, Tenant agrees 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 Tenant's trade fixtures, equipment, personal
property or inventory arising from any risk generally covered by insurance
against the perils of fire, extended coverage, vandalism, malicious
mischief, theft, sprinkler damage, and earthquake sprinkler leakage. Each
of the parties, on behalf of their respective insurance companies insuring
-such property of either Landlord or Tenant against such loss, waive any
right of subrogation that it may have against the other. The foregoing
waivers of subrogation shall be operative only so long as available in
California and provided further that no policy is invalidated, thereby.
6.3 Indemnification of Landlord. Tenant, as a material part of
the consideration to be rendered to Landlord under this Lease, hereby waives all
claims against Landlord for damage to equipment or other personal property,
trade fixtures, leasehold improvements, goods, wares, inventory and merchandise,
in, upon or about the Demised Premises and for injuries to persons in or about
the Demised Premises, from any cause arising at any time. Tenant agrees to
indemnify the Landlord, its officers, agents and employees against, and will hold
and save them and each of them harmless from, any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations, errors,
omissions or liabilities, (herein "claims or liabilities") that may be asserted
or claimed by any person, firm or entity arising out of or in connection with 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 Lease, whether or not there is concurrent passive
or active negligence on the part of the Landlord, its officers, agents or
employees but excluding such claims or liabilities arising from the sole
negligence or willful misconduct of the Landlord, its officers, agents or
employees, who are directly responsible to the Landlord, and in connection
therewith:
(a) Tenant will defend any action or actions filed in
connection with any of said claims or liabilities and will pay all costs
PS=6\099999300M20M00.1 03/05/98 -1D-
and expenses, including legal costs and attorneys' fees incurred in
connection therewith; '
(b) Tenant: will promptly pay any judgment rendered against
the Landlord, its officers, agents or employees for any such claims or
liabilities arising out of or in connection with the negligent performance
of or failure to perform such work, operations or activities of Tenant
hereunder; and Tenant agrees to save and hold the Landlord, its officers,
agents, and employees harmless therefrom;
(c) In the event the Landlord, its officers, agents or
employees is made a party, to any action or proceeding filed or prosecuted
against Tenant for such damages or other claims arising out of or in
connection with the negligent performance of or failure to perform the
work, operation or activities of Tenant hereunder, Tenant agrees to pay to
_ the Landlord, its officers, agents or employees, any and all costs and
expenses incurred by the Landlord, its officers, agents or employees in
such action or proceeding, including but not limited to, legal costs and
attorneys' fees.
7.0 ABANDONMENT AND SURRENDER.
7.1 Abandonment. Tenant shall not vacate or abandon the Demised
Premises at any time during the term of this Lease; and if Tenant shall abandon,
vacate or surrender the Demised Premises �or be dispossessed by process of law,
or otherwise, any personal property belonging to Tenant and left on the Demised
Premises shall be deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Landlord.
7.2 Surrender of Lease. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all of such subleases or subtenancies.
8.0 DAMAGE AND DESTRUCTION OF PREMISES. In the event of (a) partial or
total destruction of the Demised Premises during the term of this Lease which
requires repairs to the Demised Premises, or (b) the Demised Premises being
declared unsafe or unfit for occupancy by any authorized public authority for any
reason 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 Lease 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 Lease 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 Lease by written notice to
Tenant. If Landlord, however, elects to make said repairs, and provided Landlord
uses due diligence in making said repairs, this Lease 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)
F=76109999930=2022700,1 03/05/98 -11-
as a result of a casualty not insured against, Landlord may within thirty (30)
days following the date of such destruction terminate this Lease upon written
notice to Tenant. If Landlord does not elect to terminate because of said
uninsured casualty, Landlord 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 Lease, 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 Lease as
a result of such destruction.
9.0 ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or
sublet the Demised Premises, or any interest therein, without the prior written
• consent of Landlord, which consent shall not be unreasonably withheld. For
,purposes of this Lease, an assignment shall be deemed to include the 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 subleases'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 Lease and the proposed assignee shalb assume the obligations
of Tenant under this Lease in writing in form satisfactory to Landlord. The
proposed assignee shall simultaneously provide to Landlord an estoppel -
certificate in the form described in Section 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
Lease, and shall, at the option of Landlord, terminate this Lease. Neither this
Lease nor any interest therein shall be assignable as to the interest of Tenant
by operation of law.
Landlord shall be under no obligation to consider a request for
Landlord's 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 Lease 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.
PS2\276\099999-3000\2022700.1 03/05/98 -12-
10.0 DEFAULT AND REMEDIES.
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 Lease 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
Tenant's agreements or obligations hereunder (exclusive of a default in the
payment of money) where such default shall continue for a period of thirty (30)
days after written notice thereof from Landlord to 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;
(a) 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 Tenant's leasehold interest in the Demised Premises; (g)
the filing by any creditor of Tenant of an involuntary petition in bankruptcy
which is not dismissed within sixty (60) days after filing; or (h) the
' attachment, execution or 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 perform its agreements and obligations hereunder, though intermittently
cured, shall be deemed an incurable default. Two (2) breaches of the same
covenant within a sixty (60) day period, a notice having been given pursuant to
(a) or (b) above for the first breach, or three (3) of the same or different
breaches at any time during the term of this Lease for which notices pursuant to
(a) or (b) above were given for the 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 lease in full force and effect and enforce all of its rights and
remedies under this Lease, including the right to recover the rental as it
becomes due under this Lease, or (ii) Landlord shall have the right at any time
thereafter to elect to terminate the Lease and Tenant's right to possession
thereunder. Upon such termination, Landlord shall have the right to recover from
Tenant:
(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
(iv) Any other amount necessary to compensate the Landlord
for all the detriment proximately caused by Tenant's failure to perform
its obligations under the lease or which in the ordinary course of things
would be likely to result therefrom.
FSAV610"999-300012022700.1 03/051" -13-
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 Gums payable hereunder which are designated "rental" or
"additional rental" and any other sums payable hereunder on a regular basis such
as reimbursement for real estate taxes.
Such efforts as Landlord may make to mitigate the damages caused by
Tenant's breach of this Lease shall not constitute a waiver of Landlord's right
to recover damages against Tenant hereunder, nor shall anything herein contained
affect Landlord's right to indemnification against Tenant for any liability
arising prior to the termination of this Lease for personal injuries or property
damage, and Tenant hereby agrees to indemnify and hold Landlord harmless from any
such injuries and damages, including all attorney'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 Lease by
Tenant, or an abandonment of the Demised Premises by Tenant, shall not constitute
a termination of this Lease, or of Tenant's right of possession hereunder, unless
and until Landlord elects to do so, and until such time Landlord shall have the
right to enforce all of its rights and remedies under this Lease, including the
right to recover rent, and all other payments to be made by Tenant hereunder, as
they become due. Failure of Landlord to terminate this Lease shall not prevent
Landlord from later terminating this Lease or constitute a waiver of Landlord's
right to do so.
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 Lease as a 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 Lease. Tenant shall not be entitled to share in any
portion of the award and Tenant hereby expressly waives any right or claim to any
part thereof. Tenant shall, however, have the right to claim and recover, only
FS=761099999•300=0=700.1 03106/96 -14-
from the condemning authority (but not from Landlord) , any amounts necessary,to
reimburse Tenant for the cost of removing stock and fixtures. If this Lease is
not terminated as above provided, Landlord shall use a portion of the
condemnation award to restore the Demised Premises.
12.0 MISC.ELANEOUS.
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 Lease 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
Lease, to place upon the Demised Premises any usual or ordinary "For Lease"
signs, and during such six (6) month period Landlord or his agents may, during
normal business hours, enter upon said Demised Premises and exhibit same to
prospective tenants.
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 Lease; and service mailed to the address of tenants set forth
herein shall be adequate service for such litigation. The parties further agree
that Riverside County, California is the proper place for venue as to any such
litigation and Tenant agrees to submit to the personal jurisdiction of such court
in the event of such litigation.
12.4 Partial Invalidity. If any term, covenant, condition or
provision of this Lease is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereof.
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, administ;:ators 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) Lease covers in full each and
every agreement of every kind or nature .,whatsoever between the parties hereto
concerning this Lease, (ii) supersedes any and all previous obligations,
agreements and understandings, if any, between the parties,. oral or written, and
(iii) merges all preliminary negotiations and agreements of whatsoever kind or
nature herein. Tenant acknowledges that no representations or warranties of any
kind or nature not specifically set forth herein have been made by Landlord or
its agents or representatives.
PS=M099999-3000 0=700.1 O3105198 -15-
12.7 Authority. In the event that Tenant is a corporation or a
partnership, each individual executing this Lease on behalf of said corporation
or said partnership, as the case may be, represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of said
corporation or partnership, in accordance with a duly adopted resolution of the
Hoard of Directors, if a corporation, or in accordance with the Partnership
Agreement, if a partnership, and that this Lease is binding upon said corporation
or partnership in accordance with its terms. Tenant represents and warrants to
Landlord that the entering into this Lease does not violate any provisions of any
other agreement to which Tenant is bound.
12.8 Relationship of Parties. The relationship of the parties
hereto in that of Landlord and Tenant, and it is expressly understood and agreed
that Landlord does not in any way or for any purpose become a partner of Tenant
in the conduct of Tenant's business or otherwise, or a joint venturer with
Tenant, and that the provisions of this Lease and the agreements relating to rent
payable hereunder are included solely for the purpose of providing a method
whereby rental payments are to be measured and ascertained.
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 Lease is made and accepted upon and subject to the
following conditions: That there shall be no discrimination against or
segregation of any person or group of persons on account of race,. sex, marital
status, color, creed, national origin or ancestry, in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the Demised Premises herein
leased, nor shall the Tenant itself, or any person claiming under or through it,
' establish or permit any such practice or practices of discrimination or
.segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the Demised Premises,
12.10 Notices. Wherever in this Lease it shall be required or
permitted that notice and demand be given or served by either party to this Lease
to or on the other, such notice or demand shall be given or served in writing and
shall not be deemed to have been duly given or served unless in writing, and
.personally served or forwarded by-certified mail, postage prepaid, addressed, if
to Landlord, to City of Palm Springs, P.O. Box 2743, Palm Springs, California,
92263, Attn: City Manager, and if to Tenant, as specified in Section 1.7. Either
party may change the address set forth herein by written notice by certified mail
to the other. Any notice or demand given by certified mail shall be effective
one• (1) day subsequent to mailing.
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 Lease.
12.12 Exhibits and Addenda. The Exhibits and Addenda attached to
this Lease are made a part hereof as if fully set forth herein. In the-event of
a conflict between the terms and provisions of an Addenda and the terms and
provisions of this Lease, the terms and provisions of the Addenda shall prevail.
Ps2U76A099999-3000120=00.1 03/O508 -16-
IN WITNESS WHEREOF, the parties have duly executed this Lease together with
the herein referred to Exhibits which are attached hereto, on the day and year
first above written in Palm Springs, California.
ATTEST: CITY OF PALM SPRINGS, a
municipal corporation
�C-tY Clark
( _ City Manager
"LANDLORD"
REVIEWED AND APPROVED "
RIITAN & TDCEER
By-
Dav JV Aleshlre, Esq,
City-Attorney
P.S.P.B. Inc. , a California
— corporation
BY .
ff "TENANT"
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P521275\099999.300012=00.1 03/05196 -17-
EXHIBIT"A"
LEGAL DESCRIPTION OF THE DEMISED PREMISES
IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA:
THAT PORTION OF LOT 23 IN THE SOUTHWEST ONE-QUARTER OF SECTION 19, TOWNSHIP
4 SOUTH,RANGE 5 EAST,S.B.M.,AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS ON
FILE IN BOOK 14 AT PAGE 652 OF MAPS,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE NORTHWEST ONE-QUARTER OF THE
SOUTHWEST ONE-QUARTER OF SAID SECTION 19;
THENCE SOUTH 45031'53" WEST A DISTANCE OF 63.03 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE SOUTH 00021'44" EAST A DISTANCE OF 256.00 FEET;
THENCE NORTH 52°16'13" WEST A DISTANCE OF 344.00 FEET;
THENCE NORTH 38 044'07" WEST A DISTANCE OF 60.00 FEET;
THENCE SOUTH 89045'20" EAST A DISTANCE OF 308.00 FEET TO THE POINT OF BEGINNING.
SUBJECT TO EXISTING EASEMENTS AND RIGHTS OF WAY RECORD.
COMPRISING 0.96 ACRES, MORE OR LESS.
EXHIBIT"A"
TO LEASE
EXHIBIT "B"
PLOT P]:AN OF DEMISED PREMISES
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o LOT 90 b
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CITY OF PALM SPRINGS _
EXHIBIT' " B "
CHARLES R. HARRIS LS 4989
PLOT OF A PORTION OF LOT 23. SCALE 1' S00'
BOON 14. PAGE E52.OF NAPS,
RECORDS OF Sul DIEGO COONTY. SHEET i OF 1 SHEET
SECTION 19. T A % R 3 E. S.E.M.
I
EXHIBIT "B"
TO LEASE
FSZIT/61099999-3000120Y2700.1 03/05NE
EXHIBIT"D"
RULES AND REGULATIONS
1. Tenant shall comply with all applicable state, county and city laws and regulations.
2. Tenant shall empty all trash cans and pick up all litter within 50 feet of the batting cages within one
hour after closing and any other time when cans become full or litter unsightly.
3. At the Tenant's expense, Tenant shall clean, maintain and repair the interior and exterior of the
batting cage facility.
4. Tenant shall adhere to Landlord's signage requirement as contained in the zoning ordinance. Signage
for this facility shall be designed to inform park patrons of its presence and shall not be directed to
the street.
5. Tenant shall have vehicular access to the batting cages for delivery and pickup when a representative
of Tenant is present.No vehicle shall be parked anywhere except the parking lot when not actually
being loaded or unloaded.
6. 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 Demise Premises or on the grounds of the concession 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.
7. The outside sidewalks and loading areas immediately adjoining the Demised Premises shall be kept
clean and free from dirt and rubbish by Tenant to the reasonable satisfaction of Landlord,and Tenant
shall not place or permit any obstructions or merchandise in such areas, except to the extent
specifically permitted by the provisions of Tenant's Lease.
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 keep all window displays in a clean and orderly fashion.If merchandise is to be shown
in the window displays, such merchandise shall be changed at least every other month. Landlord
shall have the right to require the removal or change of any window display it finds, in its sole and
absolute judgment, unattractive or objectionable.
EXHIBIT"D"
TO LEASE
EXHIBIT"E"
CONSTRUCTION OBLIGATIONS
Tenant shall provide and maintain,at its expense,all equipment necessary to operate an eight-station batting
cage for softball and baseball pitching machines.
EXHIBIT"E"
TO LEASE
EXHIBIT"F"
MONTHLY RENTAL
Rental for the land upon which the batting cages are located shall be$200 per month, due and payable on
the first of each month, for the first year of the lease.
The rent will increase at a rate of$50 per month at each anniversary date for the next three years of the lease,
capping at a total of$350 per month. At the end of the fourth year of the lease, the monthly lease payment
will only be adjusted annually according to Consumer Price Index for that year.
EXHIBIT"F" _
TO LEASE
• 0
EXHIBIT"G"
SPECIAL REQUIREMENTS
1. Section 1.8 will not be applied to this Lease.
2. Section 3.2, Percentage Rental, will not be applied to this Lease.
3. Section 3.3, Cost of Living Adjustment,will not be applied to this Lease as stated See Exhibit'F."
4. Section 4.8, Downtown Business Improvement District,will not be applied to this Lease.
5. Section 5.2,Maintenance and Repair,delete the following:"Landlord shall maintain...complete said
repairs."
6. Section 5.4, Construction Obligations, will not be applied to this Lease.
7. Exhibit"C,"Estoppel Certificate,will not be applied to this Lease.
EXHIBIT"G"
TO LEASE
EXHIBIT"E"
CONSTRUCTION OBLIGATIONS
Tenant shall provide and maintain,at its expense, all equipment necessary to operate an eight-station batting
cage for softball and baseball pitching machines.
EXHIBIT "E"
TO LEASE
EXHIBIT"F"
MONTHLY RENTAL
Rental for the land upon which the batting cages are located shall be $200 per month, due and payable on
the first of each month, for the first year of the lease.
The rent will increase at a rate of$50 per month at each anniversary date for the next three years of the lease,
capping at a total of$350 per month. At the end of the fourth year of the lease, the monthly lease payment
will only be adjusted annually according to Consumer Price Index for that year.
EXHIBIT "F"
TO LEASE
EXHIBIT "G"
SPECIAL REQUIREMENTS
1. Section 1.8 will not be applied to this Lease.
2. Section 3.2, Percentage Rental, will not be applied to this Lease.
3. Section 3.3, Cost of Living Adjustment, will not be applied to this Lease as stated. See Exhibit"F."
4. Section 4.8, Downtown Business Improvement District, will not be applied to this Lease.
5. Section 5.2,Maintenance and Repair,delete the following: "Landlord shall maintain...complete said
repairs."
6. Section 5.4, Construction Obligations,will not be applied to this Lease.
7. Exhibit"C," Estoppel Certificate, will not be applied to this Lease.
EXHIBIT "G"
TO LEASE
AC-ORD. CERTIFICA0 F LILIIABILITY INSURMCEPIo Lx DATE(MM/DENY)
PSPBI-1 06/25/99
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Austin Cooper & Price ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Ins Agency Inc (Lic-0546677) HOLDER THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
P O Box 3280 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
San Bernardino CA 92413-3280
Phone: 909-886-9861 Fax:909-886-2013 INSURERS AFFORDING COVERAGE,
INSURED INSURER United Capitol Ins/Trinity
INSURER B'
P.S.P.B. Inc INSURER C'
6124 St Andrews Plaza INSURER D'
Palm Springs CA 92262
INSURER E'
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING
ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
ILTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION
DATE MMIDD DATE MMIDD LIMBS
GENERAL LIABILITY EACH OCCURRENCE $ 1D00000
A X COMMERCIAL GENERAL LIABILITY PGL0040113 06/24/99 06/24/00 FIRE DAMAGE(Any one fire) .$ 50000
CLAIMS MADE [X]OCCUR MED EXP(Anyone person) $ 5000
PERSONAL&ADV INJURY '$ 1000000
GENERAL AGGREGATE $ 1000000
GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMPoOP AGG $ 1000000
71 POLICY PRO LOC ��ds
JECT
AUTOMOBILE LIABILITY
/ COMBINED SINGLE LIMIT
ANY AUTO ^1r (Ea accident) $
ALL OWNED AUTOS I ll� BODILY INJURY
SCHEDULED AUTOS f �� (Per person) �$
HIRED AUTOS ~�
BODILY INJURY §
NON-OWNED AUTOS (Per accident)
PROPERTY DAMAGE $
(Per accident)
GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $
ANY AUTO OTHERTHAN EA ACC $
AUTOONLV: AGG $
EXCESS LIABILITY EACH OCCURRENCE �$
OCCUR CLAIMS MADE AGGREGATE '$
DEDUCTIBLE
RETENTIONI Al
$ §
WORKERS COMPENSATION AND TORYLIMITS ER
EMPLOYERS'LIABILITY
_ E L EACH-ACCIDENT $
EL DISEASE-EA EMPLOYE $
E.L.DISEASE POLICY LIMIT $
OTHER
DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS
Proof of Insurance coverages
30 days N O C except 10 days nonpayment
CERTIFICATE HOLDER N ADDITIONAL INSURED,INSURER LERER _ CANCELLATION
PALM-03 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL MAIL
30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
City Of Palm Springs
City Clerk LEFT,BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF
P 0 Box 2743 ANY KIND UPPNITHE INSURER,ITS AGENTS OR REPRESENTATIVES.
Palm Springs CA 92263-2743
ACORD 25-S(7/97) - " ACORD CORPORATION 1988