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HomeMy WebLinkAbout02967 - AGUA CALIENTE CULTURAL MUSEUM LEASE ' Agua Caliente Cultural Museum Amended & Restated Lease Agr. AGREEMENT #2967 M05063, 8-12-92 AMENDED AND RESTATED' LEASE By and Between THE' CITY OF PALM SPRINGS and AGUA CALIENTE CULTURAL MUSEUM - A NON-PROFIT ORGANIZATION [Multi—Tenant- Building/Multi—Year Lease] C/276/Ps RASTERS;27 4/14/92 TABLE OF CONTENTS Section Page 1.0 LEASE SUMMARY 1 2.0 TERM 2 2.1 Initial Term 2 2.2 Option Term 2 2.3 Time 2 2.4 Force Majeure 2 2.5 Termination by Landlord 2 2.6 'Holding Over 2 3.0 RENTAL . 2 3.1 Monthly Rental 2 3.2 Percentage Rental 2 3.3 Additional Rental 3 3.4 Cost of Living Adjustment 3 3.5 Real Property Taxes 4 3.6 Personal Property Taxes 4 3.7 Utilities 3.8 Late Payment 4 3.9 ' Interest - 4 3.10 Security Deposit 4 4.0 USE OF THE PREMISES 5 4.1 Permitted Use 5 4.2 Prohibited Uses 5 4.3 Compliance with Laws 5 4.4 Signs 5 4.5 Hours of Business 5 4.6 Charitable Leases 6 4.7 Rules and Regulations 6 4.8 Downtown Business Improvement District 6 5.0 PARKING AND COMMON AREAS 6 5.1 Definitions 6 5.2 Maintenance of Common Areas 6 ' 6.0 ALTERATIONS AND REPAIRS 7 6.1 Alterations and Fixtures 7 6.2 Maintenance and Repair 7 6.3 Free from Liens 8 6.4 Reservation of Right to Modify Property 8 6.5 Construction Obligations 8 7.0 INSURANCE AND INDEMNIFICATION 8 7.1 Insurance Provided by Landlord 8 7.2 Insurance Provided by Tenant 8 7.3 Indemnification of Landlord 9 8.0 ABANDONMENT AND SURRENDER 10 8.1 Abandonment 10 8.2 Surrender of Lease 10 9.0 DAMAGE AND DESTRUCTION OF PREMISES 10 -i- 10.0 ASSIGNMENT AND SUBLETTING 10 .11.0 DEFAULT AND REMEDIES 11 11.1 Default by Tenant 11 11.2 No Waiver 12 11.3 Landlord's Default 12 12.0 CONDEMNATION 12 13.0 MISCELLANEOUS 13 13.1 Entry and Inspection 13 13.2 Estoppel Certificate 13 13.3 Jurisdiction and Venue 13 13.4 Partial Invalidity 13 13.5 Successors in Interest 13 13.6 No Oral Agreements 13 13.7 Authority 13 13.8 Relationship of Parties 14 13.9 Nondiscrimination 14 13.10 Notices 14 13.11 Waiver 14 13.12 Exhibits and Addendum 14 Exhibit "A" - Legal Description of Property Exhibit "B" - Plot Plan of the Property Showing Location of Demised Premises Exhibit "C" - Estoppel Certificate Exhibit "D" - Rules and Regulations Exhibit "E" - Construction Obligations -2_ ;1",r L E A 5 E THIS LEASE ("Lease") is made and entered into this 12th day of August 19 92 , by and between the CITY OF PALM SPRINGS, a municipal corporation ("Landlord"), and Aqua Cal iente Cultural Museum a non-profit organization ("Tenant"). 1.0 LEASE SUMMARY. 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 Property: The term "Property" as used herein 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. 1.2 Demised Premises: The "Demised Premises" consist of the area generally crosshatched on the Plot Plan attached as Exhibit "8" hereof. 1.3 Approximate Floor Area of Premises: square feet; approximate frontage: feet; approximate depth: Feet (said measurements being to the center of interior separation partitions and the outside of exterior walls). 1.4 Lease Commencement Date: ___April 1 199_2. Term:_2_yrs. . (See Section 2.1). 1.5 Extension Options: 3 options for a term of I yearsXeach. (See Section 2.2) * $500/mo • 1.6 Monthly Rental: S ** �. (See Section 3.1). Percentage Rental: N/A per month of Tenant's gross sales. (See Section 3.2). 1.7 Security Deposit: _n(l • (see Section 3.10). (Carry over from 4/1/91 Lease) 1.8 Use of Demised Premises: —Egtahlichmant of an Indian TntarfLreLi_va fpntpr —Information station —. (See Section 4.1). 1.9 Tenant's Address for Notices: Agua Caliente Band of Cahuilla Indians .960 E. Tahguitz Canyon Way Suitp lilt palm Springs-CA 92262 1.10 If Section 4.6 of this Lease relating to charitable leases is applicable, please mark here X If Section 4.6 is applicable, the fair market rental value of the Demised Premises is E 1/Sf * $500/mo from April 1, 1992 through August 31, 1992 ** $650/mo from September 1, 1992 through end of lease C/276/PS MASTERS/28 4/14/92 2.0 TERM. 2.1. Initial Term, The initial term of this Lease shall commence on the date specified in Section 1.4 ("Commencement Date") and continue for, the period specified therein unless earlier terminated as provided herein, including but not limited to the provisions of Section 10.0 hereof. 2.2. 11ntion Term. Tenant is given the option(s) to extend the term on all of the provisions contained in this Lease for the period specified in Section 1.5 ("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 Maieur . If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of Acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws or regulations or other cause 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 contained 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 terminates this Lease pursuant to this Section, Landlord shall pay Tenant the unamortized portion of the Improvement Costs that are amortized pursuant to Section 6.1. 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, loss 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, cancellable 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 1.6 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 13.10 hereof. 3.2 CerCUDLagpRn al. (a) In addition to the Monthly Rental hereinabove agreed to be paid by Tenant, Tenant shall and will pay to Landlord at the time and in the manner herein specified 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 1.6 above, times the amount of NA Tenant's gross sales made in, upon, or From the Demised Premises during each month of the term hereof, less (6) the aggregate amount of the Monthly Rental previously paid by Tenant for said month. -2- (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 all 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 on demand such sums as may be necessary to settle in full the accurate amount of said percentage rental that should have been paid to Landlord for the period or periods covered by such inaccurate statement or statements. If said audit shall disclose an inaccuracy of greater than three percent (3%) error with respect to the amount of gross sales reported by Tenant for the period of said report, then the Tenant shall immediately pay to Landlord the cost of such audit; otherwise, the cost of such audit shall be paid by Landlord. 3.3 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 addil.ional rental. 3.4 Cost of Living Adjus m n 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 Urbsin on gp r ( 11 Item 1 for th os Angele An�h im Rn r roe Fetr000lita_n Ares, 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 -3- Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. 3.5 Real Prongrty Taxes. In addition to all rentals herein reserved, Tenant shall either pay directly to the taxing authority or pay to Landlord, at the election of Landlord, annual real estate taxes (including possessory interest taxes) and assessments levied upon the Demised Premises and a pro rats share of annual real estate taxes and assessments levied upon the parking and common areas of, the Property, if any, 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 no less than twenty (20) days prior to the delinquent date or, if Landlord rather than Tenant receives the tax bill, ten (10) days after receipt of a tax statement 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 (unless included in the expenses to maintain the common and parking areas) 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 subject to a five percent (5%) late charge. Landlord and Tenant agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to Landlord for its loss suffered by such late payment by Tenant. 3.9 Interest. Any sum to be paid pursuant to the terms of this Lease not paid when due shall bear interest from and after the 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. 3.10 Security D oo�. Tenant contemporaneously with the execution of this Lease, has deposited with Landlord the sum specified in Section 1.7 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 11.1 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 terns, covenants, and conditions 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 4.0 USE OF TIIE PREMISES. 4.1 Permitt i is . The Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the Demised Premises with appurtenances as defined herein, for the purpose of conducting thereon only the use specified in Section 1.8 of this Lease and for no other uses. 4.2 Prohibi d Ic <. 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 1.8 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 vending machine, gaming machine or video or arcade game unless expressly permitted by this Lease. 4.3 Co_mpliance with Lawc. 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. 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, Landlord 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 ,e_t _5_eq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 at 59a.; (iii) California Health and Safety Code Sections 25100 _eL agq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 gt V&.; (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 gt, M&.; (viii) California Water Code Section 1300 e_L and (ix) California Civil Code Section 3479 aL =., 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 (1) 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 Lhereor; (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 .e-L Sgq. 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 Sians. 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 8isinecc. Subject to the provisions of Section 9.0 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 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 Property; provided, however, that this provision shall not apply if the Demised Premises should be closed and the business of Tenant -5- 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 h ri bl s c, The provisions of this Section are required by Resolution No. 14527 of the City Council and shall only apply if so indicated in Section 1.10. 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 1.8 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 I.10.-Pr1or-to-the- exeeut4eR-of-•Ehi�-}rage;-'Fenenlr-her provided-tnmi-lord•-witk-a• prep=d-svciai--prQgranrf'or-wh-ictr-the-Tenartt NA it+kends-to-use{fie Dem#reel-Premiee9 {LLProgrmm jc-fln-evch mnYrch nary of Hre-Eomma�nerrt Batg-fie runt shatt su4tni'�ke-Lan9'ltr"6-a-'report,-=m-a-frorm�rid-e:mtertL zetinfacivrpto-L-andtmil;-seCtTrtgforltrtenant`sprogress i'n-montirx}-the-"Ni-siens•-Of-t1e-•Progrrom-dui inT-t,o-tynar. 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 1.10 (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 6.1. 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 R�Ps asn_r1�4�1a ions. Tenant shall faithfully observe and comply with the rules and regula- tions that Landlord shall from time to time promulgate and/or modify, The rules and regulations, if any, are. attached hereto as Exhibit "0" ("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 Property on a uniform basis. 4.8 Downtown Business Imorol m n Dic ri Tenant shall join, at its sole cost and expense, the NA 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 PARKING AND COMMON AREAS, 5.1 0efini -ions, The term "parking and common areas" as used herein shall mean those portions of the Property that are from time to time established by Landlord as automobile parking areas, roadways, walkways, landscaped areas, malls, service areas, and the like. During the term of this Lease and any extension thereof. Landlord gives to Tenant for the use and benefit of Tenant, its agents, employees, customers, licensees and subtenants a non-exclusive license in common with Landlord and other present and future owners and tenants of the Property and their agents, employees, customers, licensees and subtenants, and others authorized by Landlord to use the parking and common areas of the Property for ingress, egress and automobile parking, provided that the condemnation or other taking by any public authority, or sale in lieu of condemnation, of any or all of such parking and common areas shall not constitute a violation of this covenant. Nothing herein contained shall be deemed to prevent Landlord from using or authorizing others to use said parking and common areas. 5.2 Maintenance of ommon AreU, During the entire term hereof, Landlord shall keep or cause to be kept the parking and common areas as same are established and completed by Landlord in a good, neat, clean and orderly condition, properly lighted and landscaped, and shall repair any damage to the facilities thereof as well as the exterior walls and roof of the Demised Premises as provided in Section 6.2, but all expenses in connection with said parking and common areas shall be charged and prorated in the manner NA hereinafter set forth. Tenant agrees to pay to Landlord Tenant's pro rats share of the total expenses in connection with the parking and common areas. Tenant's pro rata share of such expenses shall be that portion of all such expenses which is equal to the proportion thereof which the number of square feet of gross floor area in the Demised Premises bears to the total number of square feet of gross leasable floor area of all buildings in the Property occupied as of the commencement of each calendar month. There shall be an appropriate adjustment of Tenant's share of the expenses in connection with the parking and common areas as of the commencement and expiration of the term of this Lease. 6 0 Upon the Commencement Date, or at any time thereafter, Landlord may submit to Tenant a statement of the anticipated expenses in connection with the parking and common areas for the period between such Com- mencement Date and the following December 31 and Tenant shall pay its pro rata share thereof in equal monthly payments. Landlord may, at any time, increase or decrease such estimated payments in the event that Landlord reasonably determines that such estimated payments are incorrect or the percentage to be allocated to Tenant is adjusted. By March 1 of each year, Landlord shall endeavor to give Tenant a statement showing the total expenses in connection with the parking and common areas for the prior calendar year and Tenant's pro rata share thereof. In the event the total of the estimated payments which Tenant has made for the prior calendar year are less than Tenant's actual share thereof, Tenant shall pay the difference in a lump sum within ten (10) days after receipt of such statement from Landlord and shall concurrently pay an additional amount to adjust any underpayment in the estimated payments for the current year. Any overpayment by Tenant shall be credited towards the payment next coming due. Alternatively, Landlord may elect to bill Tenant its pro rats share after the expenses have been incurred in which event Tenant's pro rata share shall be based on actual expenses at such intervals as Landlord shall determine. 6.0 ALTERATIONS AND REPAIRS. 6.1 Alterations and Fix nres, Tenant shall not make, or suffer to be made, any alterations to the Demised Premises, or any part thereof, or the building containing the Demised Premises or change the appearance of the building containing the Demised Premises 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 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 6.2 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 purposes of Sections 2.5 and 4.6. 6.2 Main nanee and Rap, ir. 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, Tenant's portion of the building containing 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 mainLenance 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 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 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. Fermat--she}}-period+cn}}y--sxttp -and-elran-the sidewMics- ad,lacenir#a-tha-Oeia#sed-Rr-emi sera-a�-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. -7 ,'Y i 6.3 Free From Liens. Tenant shall keep the Demised Premises, the building containing the Demised - Premises, and the property on which the Demised Premises are situated free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 6.4 R rvation of Riaht to Modifv Proo r v. Landlord hereby reserves the right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce, reconfigure, enclose and/or otherwise alter all or any portion of the Property (collectively "Modifications"), in such manner and at such time or times, throughout the term of this Lease, as Landlord may, in its sole and absolute discretion, deem. to be in the best interests of the Property. Such Modifications may include, without limitation, the right to construct new buildings in the Property for additional retail, office, hotel and/or other uses, to remove, renovate, repair, add to, modernize or otherwise alter the building in which the Demised Premises are situated as well as other buildings, facilities, structures, malls, walkways, landscaping, parking and common areas or other areas within the Property. In connection with any and all such Modifications, Landlord may enter the Demised Premises to the extent reasonably required by Landlord to pursue and complete such Modifications. In addition, Landlord may temporarily close portions of the parking and common areas and cause temporary obstructions in connection with any Modifications. Tenant agrees that under no circumstances shall the Modifications as to any portion of the Property or the construction activity that takes place in the course of making the Modifications, or any aspect thereof, including Landlord's entry into the Demised Premises, constitute an eviction or partial eviction of Tenant or a breach of Tenant's right to quiet enjoyment or of any other provision of this Lease, nor entitle Tenant to damages, injunctive relief or other equitable relief, nor entitle Tenant to any abatement or reduction in the Monthly Rental, additional rental or other charges or sums due under this Lease; provided Landlord uses reasonable efforts to mitigate any adverse effects on Tenant caused by the Modifications. 6.5 Construrtion 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. 7.0 INSURANCE AND INDEMNIFICATION. 7.1 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 (90%) 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. ] �erta�t-agreer Lro-pay La LanA}ord- L�gyro-ivka where of_the east of said-insepanEe-to-�e-determined•-by-H�e-rc}btimrshTp-Lien t-the-givss-F9 oar area•-af-ti�8eurisEd i'r2mises-tmarr to-the-xetal-gposs-leas al�}e-1`loar-area vf-thrtnrkhi rtg yr-bui9 digs-fvrelrictt-svcfi-policp-r•etat�s-- 7.2 IDsurance Provil d by Tenant. (a) EQod 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 Proo r y In ran 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) Trnsn o Pro•i� 'cie i, ilil:v 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 (11,000,000.00) 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 ' B V. $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 7.1 above. (d) Tenant to Provide Rol r'< omoencitinn Ir i r . 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) BCDeral Provisions App1is��1 . a TQnnn 's In�Lrdpcg. All of the policies of insurance required to be procured by Tenant pursuant to this Section 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 Dale or such earlier date as Tenant takes possession of the Demised Premises for any purpose; and at least 30 days prior to the expiration of any insurance policy, Tenant shall provide Landlord with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages written by insurance companies acceptable to Landlord, licensed to do business in the state where the Demised Premises are located and rated A:VII or better by Best's Insurance Guide. In the event the Risk Manager of Landlord ("Risk Manager") determines that (i) the Tenant's activities in the Demised Premises creates an increased or decreased risk of loss to the Landlord, (ii) greater insurance coverage is required due to the passage of time or (iii) changes in the insurance 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. 7.3 Ind mnifi Ution of LiadlQrd. 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 and expenses, including legal costs and attorneys' fees incurred in connection therewith; 9 i. (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. 8.0 ABANDONMENT AND SURRENDER. e.I Atbandonment. 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. 0.2 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. 9.0. DAMAGE AND DESTRUCTION OF PREMISES. In the event of (a) partial or total destruction of the Demised Premises or the building containing same during the term of this Lease which requires repairs to either the Demised Premises or said building, or (b) the Demised Premises or said building 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 either the Demised Premises or said building, 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 and/or said building 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) 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. 10.0 ASSIGNMENT AND 5U0LETTING. 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 -10- ti �Agua Caliente Cultural Museum Lease - 215 SPC "Village Green" AGREEMENT #2967 MO 4727, 3-20-91 LEASE THIS LEASE ("Lease") is made and entered into this 1St day of April 19 91 , by and between the CITY OF PALM SPRINGS, a municipal corporation ("Landlord"), and Agua Caliente Cultural Museum, a Non-Profit Organization ("Tenant"). HIIHESfiEIH: 1. FUNDAMENTAL LEASE PROVISIONS. Certain Fundamental Lease Provisions are presented in this Article and represent the agreement of the parties hereto, subject to further definition and elaboration in the respective referenced Articles 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 Articles are for convenience only and designate some of the Articles where references to the particular Fundamental Lease Provisions may appear. (a) Property: The term "Property" as used herein 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. (b) Demised Premises: The "Demised Premises" consist of the area generally crosshatched on the Plot Plan attached as Exhibit "B" hereof. (c) Approximate Floor Area of Premises: 990 square feet; approximate frontage: 42 lineal feet; approximate depth: feet (said measurements being to the center of interior separation partitions and the outside of exterior walls). (d) Tenant's Trade Name: Agua Caliente Cultural Museum • (See Article 3). (e) Lease Termination Date: March 31 , 199Z (See Article 4). (f) Term: One year with options (See Article 4(A)). (g) Extension Options: 2 options for a term of 1 year/s each. (See Article 4 (h) Monthly Rental: $ 500.00 (See Article 5). (i) Security Deposit: $ 500.00 . (See Article 5(F)). (j) Use of Demised Premises: Establishment of an Indian Interpretive Center- Information Station (See Article 3). (k) Address for Notices: Landlord: City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 Attn: Redevelopment Agency Telephone: (619) 323-8197 Tenant: Agua Caliente Band of Cahuilla Indians 960 € Taahqui-t7 Can9ay— 1-06-- Ra- c �CA 92262 8/276/014084-0001/904 HAS 12/19/90 J (m) Party to pay utility costs: Tenant (See Article 19), 2. EXHIBITS. The following drawings and special exhibits are attached hereto and made a part of this Lease: Exhibit "A" - Legal Description of Property. Exhibit "B'i - Plot Plan of Property Showing the Location of Demised Premises. Exhibit "C" - Construction Obligations. Exhibit "D" - Tenant's Estoppel Certificate. Exhibit "E" - Rules and Regulations. The following addenda are attached hereto and made a part hereof: First Addendum to Lease 12. - - 3. USE. The Landlord hereby„ leases to Tenant and Tenant hereby hires from Landlord the Demised Premises with appurtenances as defined herein, for the purpose of conducting thereon only the use specified in Section 1(j) of this Lease. Tenant agrees to use such premises only under the trade name specified in Article 1(d) hereof. 4. TERM. A. Initial Term. The term of this Lease shall be as specified in Article 1(f) hereof or until this Lease is earlier terminated as provided herein, including but not limited to the provisions of Article 22 hereof. The term of this Lease shall commence on the earlier of the following dates ("Commencement Date"): (a) the date which is thirty (30), days after the Landlord notifies Tenant in writing that the improvements to be provided by Landlord as set forth in Article 8 have been substantially completed or (b) the date on which Tenant shall open the Demised Premises for business to the public. In the event that the Commencement Date does not occur on the first day of a calendar month, the term of this Lease shall be extended by the number of days of the partial month at the commencement of the term such that the Lease shall end on the last day of a calendar month which date of termination is specified in Article 1(e) hereof ("Termination Date"). The improvements shall be deemed substantially completed when "Landlord's Work" as defined in Article B has been completed except for minor work which does not materially prevent Tenant from occupying the Demised Premises. B. Dotiou Term, Tenant is given the option(s) to extend the term on all of the provisions contained in this Lease for the period specified in Article 1(m) ("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 six (5) months but not more than one year 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. 5. RENTAL. A. 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 Article 1(h) 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 Article 1(k) hereof. B. Additional Rental. For purposes of this Lease, all monetary obligations of Tenant under this Lease, shall be deemed to be additional rental, C. UiLe 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 and late charges which may be imposed upon Landlord by the terms of any mortgage or deed of trust covering the Demised Premises. Accordingly, any payment of any sum to be paid by Tenant not -2- 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. D. 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 (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 rate permitted by law in which case interest shall be at the maximum rate allowed by law at the time the sum became due. Cost of living Adiustm2Rt Upon each anniversary date of the Commencement Date, or if e Ini tiRICommenceme-- is not on the first day of a month, then on the first day of the next calendar th, the S''' • '-''Montjusted in proportion to changes in the Consumer Price Index uch adjustment shalI be made by multiplying de by multiplyingoriginal Monthly Rental by a fraction, the numera cf which is the value of the Consumer Price Index for t lendar month three (3) months preced' he calendar month for which such adjustment is to be made and the den ' at or of which is the v of the Consumer Price Index for the same calendar month immediately prior to Comm en nit Date. or example, if the adjustment is to occur effective June 1, 1989, the index to be used for the for is the index far the month of March 19II9 and the index to be used for the denominator is ndex for onth of March preceding the Commencement Date. However, in no event shall the it be reduced below the thly Rental in effect immediately preceding such adjustment. The umer Price Index" to be used in such c lotion is the QOnSumQr Price index. A)I ilrhan Cnnsi r the Les Angeles-Anaheim-RivPrO de MP n Area, published by the United State partment of Labor, Bureau of Labor Statistics (1982-84 = 100). th an official index and on more unofficial indices are published, the official index shall be used. If sa onsumer Price ex is no longer published at the adjustment date, it shall be constructed by conversion t s uded in such new index. F. Security DP,pnSit. Tenant contemporaneously with the execution of this Lease, has deposited with Landlord the sum specified in Article 1(i) 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 F shall in any way diminish or be construed as waiving any of the Landlord's other remedies as provided in Article 23 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 conditions 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 F and Tenant shall be entitled to immediate reimbursement of its security deposit from the party then holding said deposit. 6. REAL ESTATE TAXES. In addition to all rentals herein reserved, Tenant shall pay to Landlord annual real estate taxes and assessments levied upon the Demised Premises and a pro rata share of annual real estate taxes and assessments levied upon the parking and common areas of the Property, if any, 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 payable within ten (10) days after receipt of a semi- annual statement to be sent by Landlord to Tenant setting forth the amount of such tax based upon the actual tax bill received by Landlord; or Landlord at its option shall have the right to estimate the amount of taxes next due and to collect from Tenant on a monthly basis the amount of Tenant's estimated tax obligation. Within thirty (30) days following receipt of the actual tax bill, Landlord shall provide to Tenant a reconciliation of the amount owed by Tenant and the amount actually paid by Tenant, If Tenant has underpaid Tenant shall pay the additional amount owed in a lump sum within ten (10) days. If Tenant has -3- overpaid, the amount of the overpayment shall be credited against the payment for such taxes and assessments next coming due. 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, and any overpayment shall immediately be paid by Landlord to Tenant. 7. 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. In the event any or all of the Tenant's fixtures, furnishings, equipment and other personal property shall be assessed and taxed with the Landlord's real property, the Tenant shall pay to Landlord its share of such taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to the Tenant's property. B. CONSTRUCTION. Landlord and Tenant agree to construct the improvements to the extent shown on the attached Exhibit "C" ("Landlord's Work" and "Tenant's Work", as applicable) at each party's sole cost and expense as provided in Exhibit "C". 9. PARKING AND COMMON AREAS. A. Definitions. The term "parking and common areas" as used herein shall mean those portions of the Property that are from time to time established by Landlord as automobile parking areas, roadways, walkways, landscaped areas, malls, service areas, and the like. During the term of this Lease and any extension thereof, Landlord gives to Tenant for the use and benefit of Tenant, its agents, employees, customers, licensees and subtenants a non-exclusive license in common with Landlord and other present and future owners and tenants of the Property and their agents, employees, customers, licensees and subtenants, and others authorized by Landlord to use the parking and common areas of the Property for ingress, egress and automobile parking, provided that the condemnation or other taking by any public authority, or sale in lieu of condemnation, of any or all of such parking and common areas shall not constitute a violation of this covenant. Landlord reserves the right in its sole and absolute discretion (without which right Landlord would not have entered into this Lease) to change the location of buildings and the entrances, exits, traffic lanes, parking stalls, landscaped areas, the direction and flow of traffic, and the size, boundaries, location, and configuration of the parking and common areas, to create temporary and permanent kiosks, and to annex additional property to the Property by Landlord. The license shall be automatically revoked to the extent portions of the Property are deleted by Landlord from the parking and common areas and shall be deemed expanded to the extent areas are added. Nothing herein contained shall be deemed to prevent Landlord from using or authorizing others to use said parking and common areas for utility lines and appurtenances, pickups and deliveries to and from buildings within the Property, construction, and other similar purposes. This Lease shall be subject to any agreement existing as of the date of this Lease or subsequently placed upon the real property of which the Demised Premises are a part, which agreement provides for reciprocal easements and restrictions pertaining to the parking and common areas, and in the event of conflict between the provisions of such agreement and this Lease, the provisions of such agreement shall prevail. B. Maintenance of ComciQi3 Areas. During the entire term hereof, Landlord shall, at Landlord's expense, maintain the parking and common areas in a good, neat, clean and orderly condition and shall repair any damage to the facilities thereof. C. Riles and R aulations. In addition to other rules and regulations for the Property, or as part of such rules and regulations, Landlord may adopt from time to time rules and regulations for the orderly and proper operation of said parking and common areas. Such rules and regulations may include, but shall not be limited to, the following: (i) the restricting of employee parking to a limited, designated area or areas or prohibiting parking by employees in the Property as above provided; (ii) the restriction of designated areas for drive-through banking, savings, restaurant or other drive-through facilities and/or loading, trash or other storage areas whether or not same are roofed and/or enclosed; (iii) the establishment of certain limited areas as exclusive parking areas for certain tenants of the Property; and (iv) the restriction of loading, unloading and deliveries to specified times and areas. 10. USES PROHIBITED. Tenant shall not use, or permit the Demised Premises, or any part thereof, to be used for any purpose or purposes other than the express purpose or purposes for which the Demised Premises are hereby leased pursuant to Article 1(j) hereinabove or carry on its business other than under the trade name designated in Article l(d). No use shall be made or permitted to be made of the Demised Premises, nor -4- acts done, which will increase the existing rate of insurance upon any building in the Property, including the building in which the Demised Premises may be located, or the parking and common areas (once said rate is established), or cause a cancellation of any insurance policy covering said building or any part thereof or the parking and common areas. 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 Article 1 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 vending machine, gaming machine or video or arcade game unless expressly permitted by this Lease. No use shall be made or permitted which conflicts with any recorded document. Tenant shall, at his sole cost, comply with any and all requirements, pertaining to the use of the Demised Premises, of any insurance organization or company necessary for the maintenance of reasonable fire and public liability insurance, covering the building of which the Demised Premises are a part and appurtenances. In the event Tenant's use of the Demised Premises results in a rate increase for any building within the Property, or the parking and common areas, Tenant shall pay annually on the anniversary date of this Lease, as additional rent, a sum equal to that of the additional premium occasioned by said rate increase. Tenant shall not commit, or suffer to be committed, any waste upon the Demised Premises, or any nuisance or other act or thing which may disturb the quiet enjoyment of any other tenant or occupant of the Property. Tenant shall not without Landlord's prior written consent display or sell merchandise outside the defined exterior walls and permanent doorways of the Demised Premises. Tenant shall not conduct or permit to be conducted any sale by auction in, upon or from the Demised Premises, whether said auction be voluntary, involuntary, pursuant to any assignment for the payment of creditors, or pursuant to any bankruptcy or other solvency proceeding nor display any "going out of business" or similar sign. Tenant shall not advertise, solicit business or give out literature or materials within the parking and common areas of the Property without Landlord's prior written consent. Tenant shall not engage in any activity on or about the Demised Premises that violates any Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or Environmental Law for clean-up and removal of any contamination involving any Hazardous Material created or caused directly or indirectly by Tenant. The term "Environmental Law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Demised Premises, including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601 _et =.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 'Sections 6901 It sgq. ; (iii) California Health and Safety Code Sections 25100 gt sgq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 €t 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 iat seq.; (viii) California Water Code Section 1300 _e 5_U.; and (ix) California Civil Code Section 3479 at 3". , as such laws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the parties hereto to construe the terms "Hazardous Materials" and "Environmental Laws" in their broadest sense. Tenant shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 _eS. 5_eq. 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. 11. ALTERATIONS AND FIXTURES. Tenant shall not make, or suffer to be made, any alterations to the Demised Premises, or any part thereof, or the building containing the Demised Premises or change the appear- ance of the building containing the Demised Premises 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 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 -5- 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%) or 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 Lease, including, but not limited to, any restriction on use pursuant to the provisions hereof, and the proposed assignee shall assume the obligations of 'tenant under this Lease in writing in form satisfactory to Landlord. The proposed assignee shall simultaneously provide to Landlord an estoppel certificate in the form described in Section 13.2 hereafter. Consent by Landlord to one assignment, subletting, occupation or use by another person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any assignment or subletting without the prior written consent of Landlord shall be void, shall constitute a material breach of this Lease, and shall, at the option of Landlord, terminate this Lease. Neither this Lease nor any interest therein shall be assignable as to the interest of Tenant by operation of law. Landlord shall be under no obligation to consider a request for Landlord's 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 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. 11.0 DEFAULT AND REMEDIES. 11.1 In addition to the defaults described in Section 10.0 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; (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' 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 -11- • • i elect to terminate the Lease and Tenant's right to possession thereunder. Upon such termination, Landlord shall have the right to recover from Tenant: (a) The worth at the time of award of the unpaid rental which had been earned at the time of termination; (b) The worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant proves could have been reasonably avoided; (c) The worth at the time of award of the amount by which the unpaid rental for the balance ' of the term after the time of award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided; and (d) Any other amount necessary to compensate the Landlord for all the detriment proximately caused by Tenant's 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 (3), 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 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. ' 11.2 110 Waiver. Acceptance of rental hereunder shall not be deemed a waiver of any default or a waiver of any of Landlord's remedies. 11.3 Landlord's D f, i1t. 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. 12.0 CONBEMNATION. 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 -12- :. . .. ... • taking of twenty-five percent (25%) or more of the Demised Premises, Tenant may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Lease. Tenant shall not be entitled to share in any portion of the award and Tenant hereby expressly waives any right or claim to any part thereof. Tenant shall, however„ have the right to claim and recover, only from the condemning authority (but not from Landlord), any amounts necessary to reimburse Tenant for the cost of removing stock and fixtures. If this Lease is not terminated as above provided, Landlord shall use a portion of the condemnation award to restore the Demised Premises. 13.0 MISCELLANEOUS. 13.1 Entry snd Ina ion. 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 building in which the Demised Premises are situated, or for the purpose of making repairs, alterations or additions to any other portion of said building, including the erection and maintenance of such scaffolding, canopy, fences and props as may be required, 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. 13.2 Lstoopely_artificate. 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 E&Li4iL= addressed to any existing or proposed mortgagee or proposed purchaser, and to the Landlord. Tenant shall be liable for any loss or liability resulting from any incorrect information certified, and such mortgagee and purchaser shall have the right to rely on such estoppel certificate and financial statement. 13.3 x1urisdi . .ion and VeaiLa. The parties hereto agree that the State of California is the proper jurisdiction for litigation of any matters relating to this Lease, and service mailed to the address of tenants set forth herein shall be adequate service for such litigation. The parties further agree that Riverside County, California is the proper place for venue as to any such litigation and Tenant agrees to submit to the personal jurisdiction of such court in the event of such litigation. 13.4 Partial 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. 13.5 5uccessorg in Interest. The covenants herein contained shall, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. 13.6 1D Oral Agre_em n s. This Lease (i) 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 negotiations, agreements and understandings, if any, between the parties, oral or written and (iii) merges all preliminary negotiations and agreements of whatsoever kind or nature herein. Tenant acknowledges that no representations or warranties of any kind or nature not specifically set forth herein have been made by Landlord or its agents or representatives. 13.7 Authority. In the event that Tenant is a corporation or a partnership, each individual executing this Lease on behalf of said corporation or said partnership, as the case may be, represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said corporation or partnership, in accordance with a duly adopted resolution of the Board of Directors, if a corporation, or in accordance with the Partnership Agreement, if a partnership, and that this Lease is binding upon said corporation or partnership in accordance with its terms. Tenant represents and warrants to Landlord that the entering into this Lease does not violate any provision of any other agreement to which Tenant is bound. -13- jX. 'r ,: , 13.8 Relationship of Parties. The relationship of the parties hereto is that of Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in 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. 13.9 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. 13.10 No i c. 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 the City of Palm Springs, P.O. Box 2743, Palm Springs, California, 92263, Attention: City Manager and if to Tenant as specified in Section 1..9. Either party may change the address set forth herein by written notice by certified mail to the other. Any notice or demand given by certified mail shall be effective one (1) day subsequent to mailing. 13.11 Waiver. No delay or omission in the exercise of any right or remedy by a 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 approved of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Lease. 13.12 ExhibitsanAddendum. The Exhibits and Addenda attached to this Lease are made a part hereof as if fully set forth herein. If there is a conflict between the terms and provisions of an addendum and the terms and provisions of this Lease, the terms and provisions of the addendum shall prevail. 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 nicipal corporation _ By: C�iTry' lerk City ha er C/ "LANDLORD" REVIEWED AND APPROVED RUTAN &rTUCK�E�R David J. Ales�hike, Esq. n A 'ri"(17MYrOUNCI City Attorney By42 , fe ISignatures; continued on next page.) 14 Agua Caliente Cultural Museum, a Non-Profit orpora ion I�ts�: Chairperson, {Mildred Browne Its: Secretary, Debrah Purnel "TENANT" -15- i' EXHIBIT "A" LEGALDESCRIPTION OF THE DEMISED PREMISES The southerly 40 feet of lot 5; lot 6; the - northerly-42 feet of lot 7; all in book 19 of Palm Springs, as shown by map in file in book 9, page 432 of maps, San Diego County Records. Also know as 215-219 South Palm Canyon Dr. , "Village Green". Area #2 and Area #3 on attached map. EXHIBIT "A" , TO LEASE 4 EXHIBIT "B" P LBT PLA� B PR M[C • CONCRETE DLOCK WALL R. Travers Smith I 1 I - /Outside\Scating Area (Smith) y \ O '221 1 \• \ 3 trash \ � enclosure 6-6-0 s9 .r6 I� Larry E. Smith 2�9 -i 0 215 � I o o y1P I l o 3 m I I a o w C I I I I w I I I I m Fountain I a 3 I LAWN I I LAWN 0 q'—fl ti I I 1 211 — _ Directorv � 1 ) PALM CANYON DRIVE SEC. 15 T4S R4S (APPROXIMATE LOCATIONS) r I , \y / LOCATION MAP 12-a-3 CITY OF PALM SPRINGS DEPARTMENT OF COMMUNITY DEVELOPMENT ENGINEERING 0IVIS ION i Fxu(BIr "n" TO LEASE .. • EXHIBIT "C" ' Er TOP�I CERTIFICATE Tenant: Landlord: CITY OF PALM SPRINGS, a municipal corporation Date of Lease: Shopping Center: Demised Premises: To: The undersigned hereby certifies as follows: I. The undersigned 'is the tenant ("Tenant") under the above-,referenced lease ("Lease") covering the above-referenced premises ("Demised Premises"). 2. The Lease constitutes the entire agreement between landlord under the Lease ("Landlord") and Tenant with respect to the Demised Premises and the Lease has not been modified, changed, altered or amended in any respect except as set forth above. 3. The term of the Lease commenced on ]9 and, including any presently exercised option or renewal term, will expire on I9_ Tenant has accepted possession of the Demised Premises and is the actual occupant in possession thereof and has not sublet, assigned or hypothecated its leasehold interest. All improvements to be constructed on the Demised Premises by Landlord have been completed and accepted by Tenant and any tenant construction allowances have been paid in full. 4. As of this date, to the best of Tenant's knowledge, Lhere exists no breach or default, nor state of facts which, with notice, the passage of time, or both, would result in a breach or default on the part of either Tenant or Landlord. To the best of Tenant's knowledge, no claim, controversy, dispute, quarrel or disagreement exists between Tenant and Landlord. * 500 5. Tenant is currently obligated to pay Monthly Rent in installments of S**$65 per month, and such monthly installments have been paid not more than one month in advance. $6 n�addition, the Lease requires Tenant to pay percentage rent each month in the amount of _ percent (_%) and percentage rent has been paid through 19_. To the best of Tenant's knowledge, no other rent has been paid in advance and Tenant has no claim or defense against Landlord under the Lease and is asserting no offsets or credits against either the rent or Landlord. Tenant has no claim against Landlord for any security or other deposits except $ which was paid pursuant to the Lease. 6. Tenant has no option or preferential 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 Lease. Tenant has no right to renew or extend the term of the Lease except,as set forth in the Lease. 7. Tenant has made no agreements with Landlord or its agent or employees concerning free rent, partial rent, rebate of rental payments or any other type of rent 'or other concession except as expressly set forth in the Lease. 8. There has not been filed by or against Tenant a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking 'reorganization or arrangement under the *$500 - April 1 - August 31, 1992 **$650 - September 1 - end of lease EXHIBIT "C" TO LEASE bankruptcy laws of the United States, or any state thereof, or any other action brought under said bankruptcy laws with respect to Tenant. 9. All insurance which Tenant is required to maintain under the Lease has been obtained by Tenant and is in full force and effect and all premiums with respect thereto have been paid. Dated this day of 1g By: Its: i _p_ • ''X. EXHIBIT 'D" RULES AND RE U ATIOU I. All loading and unloading of goods shall be done only at the times, in the areas and through the entrances reasonably designated for such purposes by Landlord. 2. The delivery or shipping of merchandise, supplies and fixtures to and from the Demised Premises shall be subject to such rules and regulations as in the reasonable judgment of Landlord are necessary for the proper operation of the Demised Premises or of the Property generally. 3: All of Tenant's refuse and rubbish shall be removed to central trash bins located in the Property, at Tenant's sole cost and expense. * 4. No radio or television or other similar device audible outside the Demised Premises shall be installed without obtaining in each instance the written consent of Landlord. No aerial shall be erected on the roof or exterior walls of the Demised Premises or on the grounds of the Property without First obtaining in each instance the written consent of Landlord which consent shall not be unreasonably withheld or delayed. Any aerial so installed without such written consent shall be subject to removal without notice at any time. 5. No loudspeakers, televisions, phonographs, radios or 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 Tenant's Lease. 7. Tenant shall not burn any trash or garbage of any kind in or about the Demised Premises or the Property generally. U. 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 Lime by Landlord. ** 11. 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. * Soft Indian flute music played with consent of other tenants. ** Allowed to offer and display merchandise which is suitable for an Indian cultural museum. EXIi1BlT "0" TO LEASE i;. EXHIBIT "E" UMIROGTION OBLIGATIONS N/A LBUU " TO ; EASE MEMORANDUM DATE : May 9, 1991 TO : Economic Dev, Finance & File FROM : City Clerk SUBJECT : Agr 2967 - Agua Cal i ente Cultural Museum, a non-profit corporation Purpose of this memo is to distribute revised Pages 2, 33, 11 and First Addendum to Lease, which the city attorney has changed to make the terms of the lease clearer. Changes have been initiated by the lessee and the city. One copy is for the tenant. JUDITH SUMICH City Clerk Attached CITY OF PALM SPRINGS FIRST ADDENDUM TO LEASE STORE LEASE: 215 So. Palm Canyon Drive 1 . Signaae . The following shall be added to Article 18 of the Lease: "If the Landlord, in its sole and absolute discretion, places a free standing monument sign in the common areas, Tenant shall have the right to have its business located on the Demised Premises identified in said monument sign. " 2 . Hours of Business . The second, third and fourth sentences of Article 25 of the Lease shall be deleted and shall be replaced with the following : "Subject to the provisions of Article 21 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 business hours consistent with the hours of business of the other tenants located within the Village Green; 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 . The hours of business offered by other tenants located within the Village Green are Wednesday and Sunday 12 : 00 to 3 : 00 p.m. ; Thursday, Friday and Saturday 10 : 00 a .m. to 4 : 00 p.m. " 2/383/014084-0006/33 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 Article 12 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. 12. 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, Tenant's portion of the building containing the Demised Premises and other improvements within the Demised Premises in good and sanitary order, condition, and repair (except as hereinafter pro- vided) 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 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 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. 13. COMPLIANCE WITH LAMS. Tenant shall, at his sole cost and expense, comply with all of the require- ments 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. 14. INSURANCE. A. Landlord to Provide Property Insurance.. Landlord shall maintain fire and extended coverage insurance throughout the term of this Lease in an amount equal to at least ninety percent (90%) 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 rato 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. B. Tenant to Provide Other Ins �ran . 1. 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. -6- 2. Tenant to Provide P rmul PrQpPr .y Trisurancq. 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. 3. Tenant to Provide Liability Insiranc . 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 A above. 4. Ten_a_nt to Provide l-0ork is Como n ation 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. 5. UPneral Provisions Aooli ahle to Tenant's Insurance. All of the policies of insurance required to be procured by Tenant pursuant to this Section 14.B 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 Best's Insurance Guide. In the event the Risk Manager of Landlord ("Risk Manager") determines that the Tenant's activities in the Demised Premises creates an increased or decreased risk of loss to the Landlord, Tenant agrees that the minimum limits of any insurance policy required to be obtained by Tenant may be changed accordingly upon receipt of written notice from the Risk Manager; provided that Tenant shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of Landlord within ten (10) days of receipt of notice from the Risk Manager, 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. 15. 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 (including but not limited to the police or security system for the Property); and Tenant will hold Landlord exempt and harmless from and defend Landlord against any damage or injury to any person, or the equipment and other personal property, leasehold improvements, goods, wares, inventory and merchandise of any person, arising from the use of the Demised Premises or the parking and common areas by Tenant or its employees and customers, or from the failure of Tenant to keep the Demised Premises in good condition and repair, as herein provided. 16. FREE FROM LIENS. Tenant shall keep the Demised Premises, the building containing the Demised Premises, and the property on which the Demised Premises are situated free from any liens arising out of any -7- work performed, material furnished, or obligation incurred by Tenant or alleged to have been incurred by Tenant. 17. 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 an the Demised Premises shall be deemed to be abandoned, at the option of Landlord, except such property as may be mortgaged to Landlord. 18. SIGNS. Tenant shall not place or permit to be placed any sign upon the exterior or in the windows of the Demised Premises without Landlord's prior written consent. 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. 19. UTILITIES. The party identified in Article 1(m) shall pay before delinquency all charges for water, gas, heat, electricity, power, sewer, telephone service, trash removal (unless included in the expenses to maintain the common and parking areas) 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. 20. 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 building in which the Demised Premises are situated, or for the purpose of making repairs, alterations or additions to any other portion of said building, including the erection and maintenance of such scaffolding, canopy, fences and props as may be required, 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. 21. DAMAGE AND DESTRUCTION OF PREMISES. In the event of (a) partial or total destruction of the Demised Premises or the building containing same during the term of this Lease which requires repairs to either the Demised Premises or said building, or (b) the Oemised Premises or said building 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 either the Demised Premises or said building, 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 and/or said building 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. The foregoing to the contrary notwithstanding, 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 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, -8- 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 Article 21, Tenant waives any statutory right it may have to cancel this Lease as a result of such destruction. 22. 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. 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; and (c) the proposed assignee or sublessee is morally and financially responsible. Any such assignment shall be subject to all of the terms and conditions of this Lease, including, but not limited to, any restriction on use and trade name pursuant to the provisions hereof, and the proposed assignee shall assume the obligations of Tenant under this Lease in writing in form satisfactory to Landlord. The proposed assignee shall simultaneously provide to Landlord an estoppel certificate in the form described in Article 28 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 any consideration received by 'tenant for such assignment. 23. DEFAULT AND REMEDIES. A. Default by Tenant. In addition to the defaults described in Article 22 hereinabove and in Article 27 hereafter, 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 at the time or within the times herein specified for such payment; (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 three (3) 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; (0) 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) such 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 to continue the lease in full force and -9- effect and enforce all of its rights and remedies under this Lease, including the right to recover the rental as it becomes due under this Lease or Landlord shall have the right at any time thereafter to elect to terminate the Lease and Tenant's right to possession thereunder. Upon such termination, Landlord shall have the right to recover from Tenant: (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. The "worth at the time of award" of the amounts referred to in subparagraphs A and B above shall be computed by allowing interest at 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 C 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, other sums payable hereunder which are designated "rental" or "additional rental" and any other sums payable hereunder on a regular basis such as reimbursement for real estate taxes. Such efforts as Landlord may make to mitigate the damages caused by Tenant's breach of this Lease shall not constitute a waiver of Landlord's right to recover damages against Tenant hereunder, nor shall anything herein contained affect Landlord's right to indemnification against Tenant for any liability arising prior to the termination of this Lease for personal injuries or property damage, and Tenant hereby agrees to indemnify and hold Landlord harmless from any such injuries and damages, including all attorney'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. B. No Waiver. Acceptance of rental hereunder shall not be deemed a waiver of any default or a waiver of any of Landlord's remedies. C. Landlord's D foul . 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) clays 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. 24. SURRENDER OF LEASE. The voluntary or other surrender of this Lease by Tenant, or a mutual cancel- lation thereof, shall not work a merger, and shall, at the option of Landlord, terminate all or any existing -10- 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. 25. HOURS OF BUSINESS. Tenant shall open for business no later than thirty (30) days after Landlord notifies Tenant that Landlord's Work is substantially completed as provided in Article 4 hereof. Subject to the provisions of Article 21 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 he conducted therein during the usual business hours of each and every business day 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 (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 Property; 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. The Tenant shall also participate in any program sponsored by the Downtown BLsiness Improvement District to provide evening shopping and entertainment in the Central Business District. 26. FORCE MAdEURE. If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws or regulations or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided, however, nothing in this Article 26 contained 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. 27. 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 Len (10) days thereafter, to deliver such estoppel certificate in the form attached hereto as f1Chi127t IIDII 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. RE. 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 percent (20%) or more of the Demised Premises, Tenant may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Lease. Tenant shall not be entitled to share in any portion of the award and Tenant hereby expressly waives any right or claim to any part thereof. Tenant shall, however, have the right to claim and recover, only from the condemning authority (but not from Landlord), any amounts necessary to reimburse Tenant for the cost of removing stock and fixtures. If this Lease is not terminated as above provided, Landlord shall use a portion of the condemnation award to restore the Demised Premises. Initial 29 seWN�euN—o-�s ss aLNT rssec�n�IeN �crrmt 11 ber in good standing of the O61D wring 'trr7n�f--tire--6ea-sa. 30. MISCELLANEOUS. A. ,hT�dic. a_and_y2n te. The parties hereto agree that the State of California is the proper i jurisdiction for litigation of any matters relating to this Lease, and service mailed to the address of tenants set forth herein shall be adequate service for such litigation. The parties further agree that Riverside County, California is the proper place for venue as to any such litigation. B, partial rnval il.y. 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. C. Ho1diug Dvrr. 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, cancellable -11- 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. D. Successors in Tntpr.Qsl. 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. E. No Oral Agreements. This Lease covers in full each and every agreement of every kind or nature whatsoever between the parties hereto concerning this Lease, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein, and there are no oral agreements. Tenant acknowledges that no representations or warranties of any kind or nature not specifically set forth herein have been made by Landlord or its agents or representatives. F. Authority. In the event that Tenant is a corporation or a partnership, each individual executing this Lease on behalf of said corporation or said partnership, as the case may be, represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said corporation or partnership, in accordance with a duly adopted resolution of the Board of Directors, if a corporation, or in accordance with the Partnership Agreement, if a partnership, and that this Lease is binding upon said corporation or partnership in accordance with its terms. G. Time. Time is of the essence of this Lease. H. LOD515tency. Each provision herein shall be interpreted so as to be consistent with every other provision. I. Relationship of Parties. The relationship of the parties hereto is that of Landlord and Tenant, and it is expressly understood and agreed that Landlord does not in any way or for any purpose become a partner of Tenant in the conduct of Tenant's business or otherwise, or a joint venturer with Tenant, and that the provisions of this Lease and the agreements relating to rent payable hereunder are included solely for the purpose of providing a method whereby rental payments are to be measured and ascertained. J. Reservation of Right to Modify Prooarty. In addition to the rights reserved to Landlord in Section A of Article g above, Landlord hereby reserves the right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce, reconfigure, enclose and/or otherwise alter all or any portion of the Property (collectively "Modifications,'), in such manner and at such time or times, throughout the term of this Lease, as Landlord may, in its sole and absolute discretion, deem to be in the best interests of the Property. Such Modifications may include, without limitation, the right to construct new buildings in the Property for additional retail, office, hotel and/or other uses, to remove, renovate, repair, add to, modernize or otherwise alter the building in which the Demised Premises are situated as well as other buildings, facilities, structures, malls, walkways, landscaping, parking and common areas or other areas within the Property. In connection with any and all such Modifications, Landlord may enter the Demised Premises to the extent reasonably required by Landlord to pursue and complete such Modifications. In addition, Landlord may temporarily close portions of the parking and common areas and cause temporary obstructions in connection with any Modifications. Tenant agrees that under no circumstances shall the Modifications as to any portion of the Property or the construction activity that takes place in the course of making the Modifications, or any aspect thereof, including Landlord's entry into the Demised Premises, constitute an eviction or partial eviction of Tenant or a breach of Tenant's right to quiet enjoyment or of any other provision of this Lease, nor entitle Tenant to damages, injunctive relief or other equitable relief, nor entitle Tenant to any abatement or reduction in the Monthly Rental, additional rental or other charges or sums due under this Lease; provided Landlord uses reasonable efforts to mitigate any adverse effects on Tenant caused by the Modifications. K. Rules and Regulations. Tenant shall faithfully observe and comply with the rules and regula- tions that Landlord shall from time to time promulgate and/or modify. The rules and regulations are attached hereto as Exhibit "E" ("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 Property on a uniform basis. L. Nondiscrimination. Tenant herein covenants by and for itself, its heirs, executors, adminis- trators and assigns and all persons claiming under or through it, and this Lease is made and accepted upon -12- 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, M. Notices. Wherever in this Lease it shall be required or permitted that notice and demand be given or served by either party to this Lease to or on the other, such notice or demand shall be given or served in writing and shall not be deemed to have been duly given or served unless in writing, and personally served or forwarded by certified mail, postage prepaid, addressed as specified in Article 1(k). Either party may change the address set forth in Article 1(k) 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. 31. ADDENDUM. This Lease is subject to the terms and provisions of those certain Addenda to Lease specified in Article 2 hereof. IN WITNESS WHEREOF, the parties have duly executed this Lease together 'th the herein referred to Exhibits which are attached hereto, on the day and year first above written in �.-�,oz ,,f-� , California. CITY OF PAL SPRINGS, a municipal corporation By: City Manage ATTEST: By: REVIEWED AND APPROVED By: City Attorn "LANDLORD" (Signatures Continued on Next Page] APPRCt,' r[ BY G(i: -€.`' c.:✓ dirt l( P?01 /w� j Jw —13— Agua Caliente Cultural Museum a non-profit corporation Its: Chairman - - Mildred Morris Sy: QAx (2 Its: Secretary - Debrah Purnel "TENANT" -14- r � EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY The Southerly 40 feet of Lot 5; Lot 6; the Northerly 42 feet of Lot 7; all in Block 19 of Palm Springs, as shown by map in file in Book 9, Page 432 of Maps, San Diego County Records. Also known as 215 South Palm Canyon Drive, "Village Green". EXHIBIT "A" TO LEASE I EXHIBIT "B" PLOT PLAN OF THE PROPERTY SHOWING { THE LOCATION OF DEMISED PREMISES cs A ` 0 K V n 0 o T � ,r o r a o � o 0 s; da � V 0 n EXHIBIT HBR iO LEASE 0 7 5 n 0� EXHIBIT "C" 12. Landlord's Work shall include all work specified on the plans, specifications and construction documents attached hereto as Exhibit "C-I". N/A EXHIBIT "C" TO LEASE 2/255/065598-0006/07 1217190 EXHIBIT V' ESTOPPEL CERTIFICATE Tenant; Landlord: CITY OF PALM SPRINGS, a municipal corporation Date of Lease: Shopping Center: _ Demised Premises: To: The undersigned hereby certifies as follows: 1. The undersigned is the tenant ("Tenant") under the above-referenced lease ("Lease") covering the above-referenced premises ("Demised Premises"). 2. The Lease constitutes the entire agreement between landlord under the Lease ("Landlord") and Tenant with respect to the Demised Premises and the Lease has not been modified, changed, altered or amended in any respect except as set forth above. 3. The term of the Lease commenced on 191 and, including any presently exercised option or renewal term, will expire on 19_ Tenant has accepted possession of the Demised Premises and is the actual occupant in possession Lhereof and has not sublet, assigned or hypothecated its leasehold interest. All improvements to be constructed on the Demised Premises by Landlord have been completed and accepted by Tenant and any tenant construction allowances have been paid in full. 4. As of this date, to the best of Tenant's knowledge, there exists no breach or default, nor state of facts which, with notice, the passage of time, or both, would result in a breach or default on the part of either Tenant or Landlord. To the best of Tenant's knowledge, no claim, controversy, dispute, quarrel or disagreement exists between Tenant and Landlord. 5. Tenant is currently obligated to pay Monthly Rent in installments of $ per month, and such monthly installments have been paid not more than one month in advance. To the best of Tenant's knowledge, no other rent has been paid in advance and Tenant has no claim or defense against Landlord under the Lease and is asserting no offsets or credits against either the rent or Landlord. Tenant has no claim against Landlord for any security or other deposits except $ which was paid pursuant to the Lease. 6. Tenant has no option or preferential right to lease or occupy additional space within the Shopping Center 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 Lease. Tenant has no right to renew or extend the term or the Lease except as set Forth in the Lease. 7. TenanL has made no agreements with Landlord or its agent or employees concerning free rent, partial rent, rebate of re.ntal payments or any other type of rent or other concession except as expressly set Forth in the Lease. IKELBET"D" TO LEASE 8/276/014084-0001/%4-MAS EST CER 12/7/90 8. There has not been filed by or against Tenant a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States, or any state thereof, or any other action brought under said bankruptcy laws with respect to Tenant. 9. All insurance which Tenant is required to maintain under the Lease has been obtained by Tenant and is in full force and effect and all premiums with respect thereto have been paid. 10, The undersigned acknowledges that is the beneficiary under the deed of trust encumbering the Shopping Center, that said deed of trust contains an assignment of rents due under the Lease, (orl that is the purchaser of the Shopping Center under an agreement of purchase and sale by and between , as buyer, and Landlord, as seller, and that said agreement contains an assignment of the Lease. In either case, the undersigned acknowledges that is materially relying on the representations of Tenant herein made. Dated this day of 19 By: Its: -2- M EXHIBIT "E" ULE5_AND REQUIATTONS I. 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 Shopping Center generally. 3. All of Tenant's refuse and rubbish shall be removed to central trash bins located in the Shopping Center, at Tenant's sole cost and expense. 4. No radio or television or other similar device audible outside the Demised Premises shall be installed without obtaining in each instance the written consent of Landlord. No aerial shall be erected on the roof or exterior walls of the Demised Premises or on the grounds of the Shopping Center 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 Tenant's Lease. 7. Tenant shall not burn any trash or garbage of any kind in or about the Demised Premises or the Shopping Center 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 make no use of the roof without obtaining the consent of Landlord. 11. Tenant shall not place any rubbish or other matter outside any building within the Shopping Center, except in such containers as are authorized from time to time by Landlord. 12. 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 "E" TO LEASE 8/276/014084-0001/904-nIAS Rl1L REG 12/1/90 11/09/93 17:33 WEINGRRTEN &,::Hxi INS. 6193. 3256329 NO.=6 002 mill 114:, tr:; 1;I ISSUE DATO MMIDDnY) 11/17/92 kb ";Mw PRODUCER THIS CERTIFICATE is ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE WeIngarteri & Hough DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 201 -CHFq AELOW, P.O. aox 1866 Palm Springs, CA 92263 COMPANIES AFFORDING COVERAGE COMPANY LETTER A Continental Insixance OxUany ........... COMPANY INSURED Agua Caiiente Caltu LETTER al ).=am COMPANY 215 S. Pa Cawym Dive LETTER C r m1111 Springs, CA 92262 COMPANY LETTER D COMPANY LETTER F y:j A440404i THIS IS TO CERTIFY THAT 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE FOLIQY'NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTA DATE(MMiVDIYY) DATE(MM[I)VIYY) GENERAL LIABILITY 'GENERAL AGGREGATE 3.1,000,GOO. COMMERCIAL GENERAL LIABILITY PRODUCTS-COMPIOP AGO. i$ L&ADV IN A CILAINISMADE x IOCCUR.: 9DX 7261386 10/1/92 . 10/1/93 IP 913SON A I .....INJURY I Y 2m OWNERS A CONIPACTOR'S PROT, EACH OCCURRENCE Is 1,000,000. FIRE DAMAGE(An emfi �one ..) :$ 50,000— MEO.EXPENSE(Art/Pne In I t c;-nno- AUTOMOBILE LIAPILITY COMBINED SINGLE LIMIT ANY AUTO ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOG HIRED AUTOS BODILY INJURY (For accklont) NON-OWNED AUTOS GARAGE LIABILITY PROPERTY DAMAGE 3 EXCESS LIABILITY EACH COG RRENCE S UMBRELLA FORM AGGREGATE OTHER THAN UMBRELLA FORM STATUTORY LIMITS WORKER'S COMPENSATION EACH ACCIDENT $ A" DISEASE—POLICY LIMIT KNIPLOYERS'LIABILITY DISEASE—EACH EMPLOYEE.S OTHER DESCRIPTION OF OPEMTIONISILOCAnON$fVEHICLESISPFCIAL ITEMS 44 0ASITINII �w yo I',I". .",�,.�i�� 7- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL__M DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE The City of Palm Springs I,I LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 3200 E. Taliquitz Canyon Way LIABILITY TH0 M_ Qf:ANY KIND THE COMPANY,ITS AGENTS OR REPRESENTATIVES. Palm Springs, CA 92262 AUTHORIZED KE�ES N A IVE Aaditional insured q, I OfWC jV IN ACORD CERTIFIC/1 - OF (LIABILITY INSU C OP ID G OATE(MWDD/YY) Brakke-Scbafnitz Insurance Brokers Inc, GUAC-1 08/03/01 National Specialty Underwriters,Inc. THIS CERTIFICATE IS ISTUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 28202 Cabot Road, SUlte 500 HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR Laguna Niguel, CA 92677-1251 ALTER THE COVERAGE AFFORDED BYTHE POLICIES BELOW. Lic#0428915 Phone: 949-365-51OU Fax:949-347-7067 INSURERS AFFORDING COVERAGE INSURED INSURER A: St Paul F' Marine INSURER B: Agua Caliente Band Of Cahuilla ' Al Indians Attn: Tom Kieley INSURER P. O. Box 3275 INSURER D: $L 'i Palm Springs CA 92263 -"� INSURER E: T ry 4i 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 CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUEDOR 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. INSR TYPE OFINSURANCE POLICYEFFECTIVE POLICYEXPIRATION LTR POLICY NUMBER DATE MM/DO/YY DATE MWDD/YY LIMITS GENERAL LIABILITY EACH OCCURRENCE S1,000,000 A X COMMERCIAL GENERAL LIABILITY 602NB2763 08/01/01 08/01/02 FIRE DAMAGE(Any one fire) S50,000 CLAIMS MADE FK OCCUR MED EXP(Any one person) s N/A PERSONAL B ADV INJURY S 1,000,000 GENERAL AGGREGATE 5 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP ASS S 1,000,000 POLICY 7 PRCTO LOC Em Ben. 1,000,000 JE AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) S ALL OWNED AUTOS SCHEDULED AUTOS Ber person) S (Per person) HIRED AUTOS BODILY INJURY S NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE S (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT S ANY AUTO OTHER THAN EA ACC S AUTO ONLY: AGO S EXCESS LIABILITY EACH OCCURRENCE S 10,000,000 A X OCCUR CLAIMS MADE QK09000022 08/01/01 08/01/02 AGGREGATE S10,000,000 5 DEDUCTIBLE S X RETENTION S 10000 S WORKERS COMPENSATION AND - EMPLOYERS'LIABILITY TORY LIMITS ER E L.EACH ACCIDENT S - ---- -- - --- -—— - E.L.DISEASE-EA EMPLOYEE S E.L.DISEASE-POLICY LIMIT I S OTHER DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Certificate Holder is Additional Insured, but only with respect to the policies provisions. ***10 Days Notice of Cancellation for Nonpayment*** CERTIFICATE HOLDER ZT ADDITIONAL INSURED;INSURER LETTER:_ CANCELLATION CPALSPR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL .30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL City of Palm Springs PO Box 2743 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR ,. Palm Springs CA 92263-2743 REPRESENTATIVES. AUTHORIZED REPRESENTATIVE John Riordan ACORD 25-S(7/97) ©ACORD CORPORATION 1988