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HomeMy WebLinkAbout2/6/2002 - STAFF REPORTS (8) DATE: FEBRUARY 6, 2002 TO: CITY COUNCIL FROM: C. LEE WEIGEL, CHIEF OF POLICE SUBJECT: BMX TRACK RECOMMENDATION: That City Council approve an agreement for the use of City property under the control of the Wastewater Treatment Plant for the creation of a BMX program (Bicycle Moto-Cross) for the youth of the Coachella Valley. SUMMARY: The Palm Springs Police Activities League requests that the City Council support the use of City property adjacent to and held for future use of the Wastewater Treatment Plant for the creation of a BMX program for youth. BACKGROUND: In 1996, the Palm Springs Police Department created a chapter of the California Police Activities League, known locally as the Palm Springs Police Activities League (PS PAL). The specific purpose of this non-profit public benefit corporation is to provide a common meeting ground for police, citizens and specifically, the youth of our community in the area of sports, education and recreation activities. Current programs include baseball, basketball, boxing, wrestling, Pom-poms, computer club, hiking, camping, all terrain vehicle trips and field trips. During a recent survey of Palm Springs youth to determine what types of youth programs may be desired, a great deal of support emerged for a bicycle off-road track, called a BMX track. A small parcel track in Cathedral City is scheduled to close in early January 2002. In reviewing various City parcels of land that might accommodate that activity, a vacant parcel of land east of the city's wastewater treatment plant became a preferred site for a number of reasons. It is vacant property, located in an industrial area being held for future sewer plant expansion but won't be needed for years according to Jack Martin, Project Manager, U.S. Filter and John Raymond, City Redevelopment Agency. Demuth Park is located just west of this parcel, and a BMX facility in this location is easily assembled by youth and volunteers in the community. An adult volunteer will always be present during hours of operation. Hours of operation are yet to be determined. Attached is a proposed agreement for City Council consideration, which would make this parcel available to PSPAL for this BMX project with no fiscal impact. PSPAL will �I� provide the prescribed insurance as required by the City's Risk Manager. Parents will be required to sign a waiver of liability. PSPAL will have the dirt track constructed by volunteer contractors and other donors. It is recommended that the City Council approve the proposed minute order attached approving the lease agreement. Palm Springs PAL is currently in contact with several companies and agencies regarding installation of materials and construction necessary to complete the project. It is anticipated that construction of the track will be done as a community service project. There will be no fiscal impact to the City. C. Le Weigel ,Chie of Police f Approved: , C1 anager Attachment: Minute Order �� 02 BMX TRACK LEASE AGREEMENT This BMX TRACK LEASE AGREEMENT ("Lease") is made and entered into this day of February, 2002 ("Effective Date"), by and between the CITY OF PALM SPRINGS, a California municipal corporation ("City'), and PALM SPRINGS POLICE ACTIVITIES LEAGUE, a California nonprofit corporation (PSPAL). RECITALS A. The City and PSPAL are mutually interested in providing quality recreational activities for the youth of the City of Palm Springs. B. City is the owner of that certain real property located at 4375 Mesquite Avenue, Palm Springs, California, including all improvement thereon existing as of the Commencement Date ("Site"), as legally described in Exhibit "A" attached hereto. C. The City wishes to make the Site available to PSPAL and PSPAL wishes to use such Site under the terms of this Lease to fulfill the goal of providing quality recreational activities for the youth of the City of Palm Springs. D. The parties recognize that through a cooperative Lease between the City and PSPAL for use of the Site under the terms herein, the community will be afforded the fulfillment of a major recreational goal for the youth in the City of Palm Springs. AGREEMENT 1.01 LEASE AND CONDITION OF SITE 1.1 Lease of Site. City hereby leases and demises to PSPAL and PSPAL hereby hires from City, for the term and upon the conditions set forth herein, the Site, as legally described in Exhibit "A." 1.2 Condition of Site. PSPAL agrees that it accepts the Site "AS-IS" and "WHERE-IS" without any representations and warranties of any nature or kind whatsoever from City. 2.0 LEASE TERM 2.1 Lease Commencement Date. The lease Commencement date shall mean the date this Lease is executed by City. 2.2 Lease Term. The Lease Term shall mean the period commencing upont he Lease Commencement date and continuing for five (5) years. 2.3 Delivery of Possession. City shall tender delivery of possession of the Site to PSPAL within five (5) business days following the Lease Commencement Date. 3.0 RENT 3.1 Rent. PSPAL shall not be obligated to pay any rent to City for the lease of the Site. The parties acknowledge that the service provided by PSPAL to the community under -1- this Lease serves as a benefit to the City in establishing a valuable youth program which provides the considerations or City's obligations hereunder. 3.2 Net Rent. It is the intention of the parties that the rent herein specified shall be net to the city in each year during the term of this Lease, that all costs, expenses and obligations of every kind relating and allocable to the Site (except as may be otherwise specifically provided in this Lease) which may arise or become due during the Lease Term shall be paid by PSPAL and that City shall be indemnified by PSPAL against such costs, expenses and obligations. 3.3 Additional Rent. All taxes, charges, costs and expenses which PSPAL is required to pay hereunder, together with all interest and penalties that may accrue thereon in the event of PSPAL's failure to pay such amounts, and all damages, costs and expenses which City may incur by reason of any default of PSPAL, or failure on PSPAL's part to comply with the terms of this Lease, shall be deemed to be additional rent and, in the event of nonpayment by PSPAL, City shall have all rights and remedies with respect thereto as City has for the nonpayment of rent. 4.0 USE OF SITE 4.1 Use of Site. PSPAL shall use the Site solely for the purpose of operating a BMX Trackfor use bythe general public, pursuant to the American Bicycle Association (ABA) bylaws on file with the Contract Officer at Palm Springs City Hall located at 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263. Except for said conditional use, PSPAL has no additional rights, privileges or obligations with respect to the use of the Site, and, in particular, has no additional rights, privileges or obligations with respect to the subsurface of the Site. PSPAL shall not expand or change such use without the express written consent of City. PSPAL shall further comply with the following requirements: 4.1.1 Membership Rules Registration and Bylaws (a) PSPAL shall insure that its activities are, at all times, conducted in accordance with the ABA on file with the Contract Officer. (b) PSPAL agrees to support the City by informing its participants regarding the ABA Rules and Regulations and Bylaws on file with the Contract Officer, and any additional safety rules necessary to avoid any injuries arising from the activities of PSPAL at the Site. (c) All Coaches and assistants provided by PSPAL at the Site shall, at all times, be certified under any applicable federal, state or local standard for the provision of sports medicine first aid. (d)An adult designated by PSPAL, who shall be certified pursuant to Section 4.1.1 (c) immediately above and qualified to supervise youth activities, shall be present at all times during the hours of operation. 4.1.2 Safety Equipment: (a) PSPAL shall provide, at its sole cost and expense, safety equipment that provides the highest level of safety and is adequate for the protection of suers of the Site from injuries arising from PSPAL activities under this Lease. The safety equipment provided by PSPALshall complywith any applicable minimum safety requirements underfederal, state -2- G� or local standards for boxing activities. (b) PSPAL shall pay for and assume full responsibility for all supplies, equipment and uniforms relating to PSPAL's activities at the Site. 4.2 Hours of Operation. PSPAL shall maintain the Site open for public use during hours to be approved in advance by the Contract Officer. PSPAL may request changes in the hours and days of operation from time to time in response to the public demand for use of the Site. PSPAL shall submit such requests in writing to the Contract Officer, who shall approve or disapprove the request within five (5) working days after receipt. Requests may be submitted by fax. Any request not approved or disapproved within five (5) working days shall be deemed disapproved. 4.3 Compliance with Law. PSPAL agrees that all operations and activities by or under PSPAL on the Site shall be conducted in compliance with all applicable statutes, ordinances, orders, laws, rules and regulations, and the requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and offices thereof, which may be applicable to the Site or to the use or manner of use of the Site. PSPAL shall indemnify and hold the City harmless against all actions, claims and damages by reasons of(i) PSPAL's failure to perform the terms hereof; or(ii) PSPAL's nonobservance or nonperformance of any statue,ordinance, order, law, rule, regulation and/or governmental requirement related to PSPAL's use and occupancy of the Site or the condition thereof. 4.4 Miscellaneous Restrictions. PSPAL agrees in using the Site: 4.4.1 Not to commit any waste or suffer any waste to be committed upon the Site. 4.4.2 Not to perform any acts or carry on any practices that may inure adjoining buildings or property or be a nuisance or menace to other persons or businesses in the area or disturb the quiet enjoyment of any person, nor to conduct or permit to be conducted any public or private nuisance on the Site. 4.4.3 Not engage in any activity on or about the Site that violates any "Environmental Law"(as defined below), and to promptly, at PSPAL's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or Environmental Law for cleanup and removal of any contamination involving any "Hazardous Material" (as defined below) created or caused by or under PSPAL. 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 Site including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii)California Health and Safety Code Sections 25100 et seq.; (iv)the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.; (v) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.; (vi) California Water Code Section 1300 et seq.; and (vii) California Civil Code Section 3479 et seq., as such laws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance which is (i) defined or listed as a "hazardous waste," "extremely hazardous waste," "restrictive hazardous waste" or"hazardous substance" or considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the -3- _ 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 Law" in their broadest sense. PSPAL shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq. PSPAL shall provide prompt written notice to City of the existence of Hazardous Substances on the Site and all notices of violation of the Environmental Laws received by PSPAL. PSPAL's obligations pursuant to this Section shall be referred to in this Lease as "Environmental Compliance." 4.5 Public Access. Except as provided in this Section 4.5, the Site shall be open to the general public during the hours of operation approved by the Contract Officer in accordance with Section 4.2. No preferential or exclusive rights shall be granted to any individual user of the Site, or any portion thereof, except that preferential rights may be granted to students of the Palm Springs Unified School District and other regional school districts for educational purposes. The general public may be excluded during such times as the Site is being used by school districts for such purposes. Notwithstanding the foregoing, PSPAL may, with the written approval of the Contract Officer, exclusively use the Site during non-operating hours for its private purposes such as fund-raising or promotions. 5.0 ALTERATIONS, MAINTENANCE AND REPAIRS 5.1 By PSPAL. PSPAL shall take such measures as may be reasonably necessary to control weeds, blowing dirt and sand, trash, etc., with respect to any unimproved portion of the Site. In the event PSPAL fails to maintain the Site, City shall have the right but not the obligation to enter upon the Site to correct or cure the problem and any cost to City, plus a 15% administrative charge, shall be billed to PSPAL and shall be paid by PSPAL within thirty (30) days after receipt of such invoice, provided, however, that the foregoing right of City to enter upon the Site to correct or cure a maintenance problem shall not be exercised unless and until City has provided written notice to PSPAL specifying the problem and the action needed to correct or cure it, and the expiration of a period of twenty (20) days given to PSP to correct or cure problems pertaining to building improvements, or ten (10) days pertaining to landscaping, or five (5) days pertaining to dirt, graffiti, trash, and similar problems. The irrigation system for any landscape area to be maintained by PSPAL shall be metered to the Site. PSPAL, at its sole expense, shall further be responsible for the complete maintenance, repair, and replacement, as may be necessary, of all furniture, furnishings and equipment at the Site or used for the PSPAL. 5.2 Waiver of Repairs. PSPAL hereby expressly waives any right or privilege under statute or otherwise to require that repairs be performed by City, or at the expense of City, to the Site, except those repairs required to be performed by the City under Section 5.1 herein or if such repairs are caused by the negligence or willful misconduct of City or its agents, employees or representatives. 5.3 Alterations. In the event that either prior to or during the Lease Term any alteration, addition, or change or otherwise to the Site, or any portion thereof, is required by law or regulation or rule, the same shall be made by PSPAL at PSPAL's sole cost and expense. Subject to obtaining all requisite governmental permits and authorizations, PSPAL shall have the right to make nom-structural alterations to the interior of any building constructed by PSPAL upon the Site, provided that the same when complete are of a character as not adversely to affect the value of the building immediately before such alteration. Except for the alterations permitted by the preceding provisions of this Section, -4- I - k7 PSPAL shall not make or permit any alterations, additions or improvements to be made to or upon the Site or to the common and parking areas upon the Site without first obtaining the written consent of City. Any alterations, additions or improvements made by PSPAL in accordance with the Section 5.4 shall be diligently constructed, at no cost or expense to City, and in a good and workmanlike manner according to and in conformity with any laws, rules and regulations of all governmental bodies and agencies. 5.4. Mechanics' Liens. PSPAL agrees that it will pay or cause to be paid all costs for work done by it or caused to be done by it on the Site of a character that may result in liens on City's estate therein, and PSPAL will keep the Site free and clear of all mechanics' liens or other liens on account of work done or alleged to have been done by or for PSPAL or persons claiming under it. City and its representatives shall have the right to post and keep posted on the Site such notices as City may deem necessary for the protection of its interest in the Site during the period that any work is being performed that might result in a lien being filed against the Site. At least twenty (20) days prior to PSPAL's placing any materials upon the Site or causing any labor or work of construction of any alterations, additions or improvements or repairs having a cost in excess of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) to be performed, PSPAL shall deliver to City notification thereof specifying the nature and location of the intended work and the expected date of commencement thereof. All construction to be performed by PSPAL or performed by or under PSPAL shall be performed without cost or expense to City. Notwithstanding the above, PSPAL may contest the validity of any such mechanic's lien claim filed against the Site or City's estate therein, provided that in such event, PSPAL shall first notify City and, if requested by City, shall, within ten (10) days of the City's request, either bond such lien or cause such lien to be bonded in the manner authorized by law so as to release the real property subject thereto from such lien. 5.5 Utilities. PSPAL shall, at its own expense, pay before delinquency all charges for water, gas, heat, electricity, power, sever, telephone service, trash removal and all other services and utilities used in, upon, or about the Site by PSPAL or any of its subtenants, or licensees during the Lease Term. 6.0 INSURANCE AND INDEMNITY 6.1 Insurance Provided by PSPAL. City shall maintain fire and extended coverage insurance throughout the term of this Lease. PSPAL understands that City's coverages hereunder do not include PSPAL's furniture, fixtures or merchandise. PSPAL hereby waives any right of recovery from City, its officers and employees, and City 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. 6.1 Insurance provided by PSPAL. (a) PSPAL to Provide Personal Property Insurance. PSPAL, 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 Site from loss or damage to the extent of their full replacement value and shall provide plate glass coverage. (b) PSPALto Provide Liability Insurance. During the entire term of this Lease, the PSPAL shall, at the PSPAL's sole cost and expense, but for the mutual benefit of City and PSPAL, maintain comprehensive general liability insurance insuring against claims for bodily injury, death or property damage occurring in, upon or about the Site and on any sidewalks directly adjacent to the Site written on a per occurrence basis in an amount not 5 I /I 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 operating and property damage limits of $100,000.00 per occurrence and $250,000.00 in the aggregate; provided, however, if City so elects City may provide such insurance and, in such event, agrees to pay its pro rata share of the cost of said insurance on the same basis as provided in Section 6.1 above. (c) General Provisions Applicable to PSPAL's Insurance. All of the policies of insurance required to be procured by PSPAL pursuant to this Section 6.2 shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurers shall waive all rights of contribution they may have against the City, 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 City. Prior to the Commencement date or such earlier date as PSPAL takes possession of the Site for any purpose, and at least 30 days prior to the expiration of any insurance policy, PSPAL shall provide City with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages written by insurance companies acceptable to City, licensed to do business in the state where the Site is located and rated A:VII or better by Bet's Insurance Guide. In the event the Risk Manager of City ("Risk Manager') determines that (i) the PSPAL's activities in the Site creates an increased or decreased risk of loss to the City, (ii)greater insurance coverage is required due to the passage to time, or (iii) changes in the industry require different coverages be obtained, PSPAL agrees that the minimum limits of any insurance policy required to be obtained by PSPAL may be changed accordingly upon receipt of written notice from the Risk Manager; provided that PSPAL shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. City and PSPAL hereby waive any rights each may have against the other on account of any loss or damage occasioned by property damage to the Site, its contents, or PSPAL's trade fixtures, equipment, personal property or inventory arising from any risk generally covered by insurance against the other on account of any loss or damage occasioned by property damage to the Site, its contents, or PSPAL'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 City or PSPAL against such loss, waive any right of subrogation that it may have against the other. The foregoing waivers of subrogation shall be operative only so long as available in California and provided further that no policy is invalidated thereby. 6.3 Indemnification of City . PSPAL, as a material part of the consideration to be rendered to City under this Lease, hereby waives all claims against City for damage to equipment or other personal property,trade fixtures, leasehold improvements, goods,wares, inventory and merchandise, in, upon or about the Site and for injuries to persons in or about the Site,from any cause arising at any time. PSPAL agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from any and all actions, suites, 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 PSPAL, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Site or the parking and common areas by PSPAL or its employees and customers, or arising from the failure of PSPAL to keep the Site in god condition and repair, as herein provided or arising -6- GA � from the negligent acts or omissions of PSPAL hereunder, or arising from PSPAL's negligent performance of or failure t 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 City, it officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) PSPAL will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) PSPAL will promptly pay any judgment rendered against the City, 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 PSPAL hereunder, and PSPAL agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against PSPAL 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 PSPAL hereunder, PSPAL agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 7.0 TAXES 7.1 Personal Property Taxes. PSPAL agrees to pay, prior to delinquency, all taxes levied upon personal property, if any, including trade fixtures, and inventory, not owned by City and kept on or about the Site by or under PSPAL. 7.2 Real Property Taxes. PSPAL agrees to pay all real property taxes(including any possessory interest taxes and special and ad valorem taxes) and assessments levied or assessed upon the Site and all improvements thereof from and after the Lease Commencement date during the Lease Term. Any tax or assessment relating to a fiscal period, a part of which precedes the Lease Commencement date or which continues beyond the end of the Lease Term, shall be prorated so PSPAL shall pay only that portion thereof which relates to the portion of the subject tax period commencing with the Lease Commencement date included within the Lease Term. The term "real property taxes and assessments"shall include any increases on any such tax or assessment imposed by reason of this Lease or a transfer, either partial or total, of City's and/or PSPAL's interests in and to the Site and/or the underlying realty and/or any imposition added to any such tax or assessments levied or assessed on the Site directly to the taxing governmental authority prior to delinquency tax or assessment imposed by reason of this Lease or a transfer, either partial or total, of City's and/or PSPAL's interests in and to the Site and/or the underlying realty and/or any imposition added to any such tax or assessment by reason of any such transfer. PSPAL shall pay the real property taxes and assessments levied or assessed on the Site directly to the taxing governmental authority prior to delinquency. 7.3 Proof of Payment. All taxes payable to PSPAL pursuant to this Section 9 shall be paid by PSPAL prior to delinquency. PSPAL shall provide City with cancelled checks (or other reasonable evidence)evidencing the payment of all taxes payable to PSPAL under this Lease within sixty (60) days of the delinquency date for the payment of said taxes. -7- / a ( q 8.0 CASUALTY DAMAGE 8.1 Right to Terminate. In the event the whole or any part of the improvements at the Site shall be damaged or destroyed by any casualty other than those for which the City shall insure pursuant to Section 6.1, at any time during the Lease Term, PSPAL shall with all due diligence, at PSPAL's sole cost and expense, repair, restore and rebuild such improvements on the same plan and design as existed immediately prior to such damage or destruction and to the same condition that existed immediately prior to such damage, provided, however, that in the event of the damage or destruction is such that restoration of such improvements cannot be reasonably accomplished within one (1) year following commencement of such restoration work, then PSPAL may cancel this Lease by giving written notice of its election to do so to City within sixty(60)days after PSPAL receives notice or acquires knowledge of such damage or destruction meeting the criteria above, in which event PSPAL need not restore or rebuild the improvements, but shall release to City any interest of PSPAL and/or its encumbrancers in and to any insurance proceeds from the insurance to be provided by PSPAL pursuant to Section 6.2 above. 8.2 Insurance Proceeds. In the event of any restoration ro reconstruction pursuant to this Section 8, City agrees to cooperate with PSPAL and PSPAL's insurer to obtain the release of the insurance proceeds available in consequence of such damage of PSPAL's restoration and reconstruction progresses, subject only to City's approval of normal architects' certificates, mechanics' lien waivers and other reasonable and customary construction disbursement documentation. Prior to any such restoration and reconstruction as herein provided, the drawings and specifications therefor shall be submitted to City and any other necessary parties for their approval. City agrees that its approval of such drawings and specifications shall not unreasonably be withheld or delayed. All such work performed by PSPAL shall be constructed in a good and workmanlike manner according to and in conformance with the laws, rules and regulations of all governmental bodies and agencies and the requirements of this Lease applicable to the original construction of the Improvements In the event PSPAL terminates this Lease under section 8.1 above, City shall have the right to retain all insurance proceeds other than those attributable to PSPAL's trade fixtures, equipment and personal property, provided, however, that in the event such insurance proceeds are in excess of the amount required to repair and/or restore the Improvements, City agrees to pay to PSPAL any excess proceeds. 9.0 ASSIGNMENT AND SUBLETTING 9.1 Citv's Consent Required. PSPAL shall not, either voluntarily or by operation of law, assign or encumber PSPAL's leasehold estate hereunder or sublet the Site, or any portion thereof (all of which shall be referred to herein as a "Transfer"), without City's prior written consent in each instance, which consent shall not be unreasonably withheld, conditioned, or delayed, or, except in connection with a permitted sublease, permit the Site to be occupied by anyone other than PSPAL or PSPAL's employees, contractors, and volunteers. Consent by City to one or more Transfers of this Lease or of the Site or to any such occupancy shall not release PSPAL from the requirement that City's consent be obtained to all subsequent Transfers. 9.2 No Release. No Transfer by PSPAL, or by any of PSPAL's successors or assigns in interest, even with the consent of City, shall relieve PSPAL of its obligations to perform all of the other obligations to be performed by PSPAL hereunder. The acceptance by City of any payment due hereunder from any other person shall not be deemed to be a waiver by City of any provision of this Lease or to be a consent to any transfer. Any waiver by City must be in writing and PSPAL may not rely upon or assert any estoppel or waiver 8 � 14 based upon any alleged oral statement or warranty. 10.0 DEFAULT: TERMINATION Either party may terminate this Lease upon a default by the other party. A party shall be in default under this Lease if that party fails to perform obligations required of it within a reasonable time, but in no event later than thirty (30) days after written notice from the other party, specifying wherein the nonperforming party has failed to perform such obligations, provided, however,that if the nature of the nonperforming party's obligation is such that more than thirty(30) days are required for performance then the nonperforming party shall not be in default if it commences performance within such thirty (30)day period and thereafter diligently prosecutes the same to completion. 11.0 QUIET ENJOYMENT Subject to all rights reserved to City under this Lease including, without limitation, City's right of inspection as herein below provided, and upon PSPAL observing and performing all of the terms, covenants and conditions on PSPAL's part to be observed and performed, City hereby warrants, represents and covenants that PSPAL may peaceably and quietly have, hold, occupy and enjoy the Site and all of the appurtenances thereto without hindrance or molestation from City or those lawfully claiming an interest in or to the Site through or under City. 12.0 MISCELLANEOUS 12.1 Inspection. City reserves the right for City and for its agents, servants and representatives: 12.1.1 Upon twenty-four(24) hours prior notice, to enter upon the Site at any reasonable time, during PSPAL's normal business hours, for the purpose of attending to its business and interests hereunder, including, but not limited to, assuring compliance by PSPAL of all terms and obligations of this Lease (provided that prior notice and limitation to business hours shall not apply in the event of an emergency). 12.1.2 To inspect the Site and make any repairs or improvements which City shall at any reasonable time deem necessary or proper for the preservation of the Site and other Improvements if PSPAL defaults in its obligation to do so hereunder, provided that nothing herein contained shall be construed as obligating City to make any such repairs or improvements. 12.1 Condemnation. In the event a condemnation or a transfer in lieu thereof results in a taking of any portion of the Site, City may, or in the event a condemnation or a transfer in lieu thereof results in a taking of twenty-five percent (25%) or more of the Site, PSPAL may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Lease, PSPAL shall not be entitled to share in any portion of the award and PSPAL hereby expressly waives any right or claim to any part thereof. PSPAL shall, however, have the right to claim and recover, only from the condemning authority (by not from City), any amounts necessary to reimburse PSPAL for the cost of removing its furniture, equipment and merchandise. If this Lease is not terminated as above provided, City shall use a portion of the condemnation award to restore the Site. 12.3 Surrender at End of Term. Any improvements built, constructed, or placed upon the Site by or under PSPAL, other than PSPAL's trade fixtures, equipment and -9- �h �I personal property, shall remain on the Site and become the absolute property of City without any cost to City upon the termination of this Lease, whether by lapse of time or by forfeiture by reason of default provided that PSPAL shall have the right to remove its trade fixtures, removable tenant improvements, equipment and personal property on or before expiration or earlier termination of this Lease, provided that PSPAL repairs any damage occasioned by such removal. If, at the end of the Lease Term or earlier termination as herein provided, PSPAL has left any merchandise, furniture or fixtures in or about the Site, City may give PSPAL written notice to remove said property. In the event said property is not removed within thirty (30) days of the sending of said notice, City may dispose of said property in any manner whatsoever, at PSPAL's cost, and PSPAL hereby waives any claim or right to said property or any proceeds derived from the sale thereof. 12.4 Holding Over. In the event PSPAL shall hold over the Site after the expiration of the Lease Term (including any extensions) with the consent of City either express or implied including, without limitation, a hold over by a sublessee, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations hereof, and PSPAL hereby agrees to pay City the same rentals and charges provided for by this Lease for such additional time as PSPAL shall hold such property. 12.5 Force Maieure. If either party is delayed, prevented or hindered from the performance of any covenant or condition of this Lease because of acts of the other party, Acts of God, adverse weather conditions not reasonably anticipated, war, invasion, insurrection, acts of a public enemy, riot, mob violence, civil commotion, sabotage, labor disputes, inability to market, unusual delay in transportation, laws, rules, regulations or orders of governmental or military authorities, or any other cause beyond the reasonable control of the parties so obligated, whether similar or dissimilar to the foregoing, financial inability excepted, such performance shall be excused for the period of the delay, and the period for such performance shall be extended for a period equivalent to the period of such delay. 12.6 Waiver. No written waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof. City's acceptance of any sum payable by PSPAL to City under this Lease while PSPAL is in default under the terms of this Lease shall not constitute a waiver by City of such default, other than a default by PSPAL in payment of the sum so accepted by City. PSPAL shall not rely on any oral waiver and shall not rely on any course of conduct as a waiver of any provision of this Lease. PSPAL may rely only on specific waivers confirmed in writing. 12.7 Notices. Whenever in this Lease it shall be required or permitted that notice or demand be given or served by either party to this Lease to or on the other, such notice or demand shall be given or served and shall not be deemed to have been duly given or served unless said notice is in writing and is either personally served (including service by overnight courier) upon the person for whom intended or mailed, by registered or certified mail, with postage prepaid, addressed to the party for whom intended at the address that follows: City: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 With a Copy to: David J. Aleshire, Esq. Burke Williams & Sorensen -10- 18301 Von Karman Avenue Suite 1050 Irvine, CA 92612 PSPAL: Police Activities League 2363 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: George Palomares Either City or PSPAL may change such address by notifying the other party in writing as to such new address as PSPAL or City may desire used and which new address shall continue as the address until further written notice. If nay notice or demand is sent by mail as aforesaid, the same shall be deemed served or delivered three (3) days after the mailing thereof in the manner provided above. If any notice or demand is sent by overnight courier as aforesaid, the same shall be deemed served or delivered twenty-four (24) hours after deposit of the same with an overnight courier for delivery to the party to whom intended at the address provided above for such party pursuant to this Section. 12.8 No Oral Agreements. This(i) Lease covers in full each and every agreement of every kind or nature whatsoever between the parties hereto concerning this Lease, (ii) supersedes any and all previous obligations, agreements and understandings, if any, between the parties, oral or written, and (iii) merges all preliminary negotiations and agreements of whatsoever kind or nature herein. PSPAL acknowledges that no representations orwarranties of any kind or nature not specifically setforth herein have been made by City or its agents or representatives. 12.9 Inurement. Each of the covenants, conditions and agreements herein contained shall inure to the benefit of and shall apply to and be binding upon the parties hereto and their respective heirs, legatees, devisees, executors, administrators, successors, assigns, sublessees or any person who may come into possession of said Site or any part thereof in any manner whatsoever. Nothing in this Section shall in any way alter the provisions against assignment or subletting herein above provided. 12.10 Assignment by City. In the event City shall transfer or conveyor be divested of its fee estate in and to the Site, and as a part of said transaction shall transfer, convey, assign or be divested of its interest as City in and to this Lease, then from and after the effective date of said assignment, transfer, conveyance, divestiture or reverter and assumption of this Lease by the transferee, City shall have no further liability, except for liabilities which shall have accrued and be unsatisfied as of such date, for all of which liabilities City shall continue to be obligated notwithstanding any such assignment, transfer, conveyance, divestiture or reverter. 12.11 Severability. If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this lease, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease shall be valid and be in force to the fullest extent permitted by law. 12.12 Authority of PSPAL. Each individual executing this Lease on behalf of the PSPAL represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of the PSPAL, in accordance with the bylaws of the PSPAL, and that this Lease is binding upon said PSPAL. Each individual executing this Lease on behalf of City represent and warrants that he is duly authorized to execute and deliver this Lease on behalf -11- /�/3 of City and that this lease is binding upon City. 12.13 City's Officers and Employees. 12.13.1 Non-liability of Officers and Employees No officer, official, agent, contractor, or employee of City shall be personally liable to PSPAL, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to PSPAL or to its successor, or for breach of any obligation of the terms of this Lease. If the PSPAL is a corporation (including a 501(c)(3) corporation) or limited liability company, no official, agent, contractor, director, or employee of PSPAL shall be personally liable to City, or any successor in interest, in the event of any default or breach by PSPAL or for any amount which ,ay become due to City or to its successor, or for breach of any obligation of the terms of this Lease. 12.13.2 Conflict of Interest. No officer or employee of City shall have any financial interest, direct or indirect, in this Lease nor shall any such officer or employee participate in any decision relating to this Lease which affects the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any state statute or regulation. 12.14 Non-Discrimination. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, age, ancestry or national origin in the leasing, subleasing,transferring, use, occupancy, tenure or enjoyment of the Site herein leased nor shall the PSPAL itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of lessees, sublessees, subtenants or vendees of the Site herein leased. 12.15 Authority of Contract Officer. Whenever a reference is made herein to an action or approval to be undertaken by City, the person designated by the City Manager, which person is referred to herein as the Contract Officer, is authorized to act on behalf of City unless specifically provided otherwise or the law or otherwise requires. 12.16 Real Estate Broker. PSPAL and City each represent and warrant to the other that it has not dealt with any real estate broker and knows of no real estate broker, agent, or finder that may claim a commission in connection with this Lease. PSPAL and City shall each indemnify, defend, and hold the other harmless from and against any claim for any broker's or finder's fee arising out of the acts or omissions of the indemnifying party. {End - Signature Page and Exhibits Follow} -12- G �/� IN WITNESS WHEREOF, City and PSPAL have cause this Lease Agreement to be executed and to be effective as of day and year first hereinabove written. "CITY" CITY OF PALM SPRINGS, a California municipal corporation City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney "PSPAL" PALM SPRINGS POLICE ACTIVITIES LEAGUE A California non-profit corporation Board Member Board Member Board Member Board Member [End of Signatures] -13- MINUTE ORDER NO. APPROVING AN AGREEMENT FOR THE USE OF CITY PROPERTY UNDER THE CONTROL OF THE WASTEWATER TREATMENT PLANT FOR THE CREATION OF A BICYCLE BMX PROGRAM (OFF ROAD BICYCLES) FOR THE YOUTH OF THE COACHELLA VALLEY. I HEREBY CERTIFY that this Minute Order, recommending the use of City property under the control of the Wastewater Treatment Plant for the creation of a bicycle BMX track (off road bicycles) for the youth of the Coachella Valley be approved by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 6th day of February, 2002. City Clerk �O