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1996-01 YMCA/Child Care Lease Agreementby and between CITY OF LA QUINTA "Lessor" and THE FAMILY YMCA OF THE DESERT, "Lessee" wr Im ARTICLE I. TERM OF LEASE 1.1 Premises ........................... 1 1.2 Reservation ......... ................. 1 1.3 Exceptions to Leasehold Estate............ 1 1.4 Term ............................. 1 1.5 Date of Lease and Legal Effect ............ 1 ARTICLE II. OWNERSHIP OF IMPROVEMENTS 2.1 Ownership of Improvements and Furnishings, Fixtures, Equipment and Personal Property .... 2 ARTICLE III. RENT 3.1 Minimum Rent ....................... 2 3.2 Additional Payments ................... 2 3.3 Place of Payment; Late Payments .......... 2 ARTICLE IV. USE OF PREMISES AND COMPLIANCE WITH LAW 4.1 Permitted Uses ....................... 2 4.2 Use of Premises by Community Organizations ........................ 3 4.3 Nondiscrimination :.................... 3 4.4 City Resident Incentives ................ 3 ARTICLE V. PAYMENT OF EXPENSES ................ 3 ARTICLE VI. MAINTENANCE OF LEASED PREMISES 6.1 Lessee's Obligations .................... i 4 112-•� 6.2 Lessee's Obligations for Maintenance......... 5 ARTICLE VII. INSURANCE AND INDEMNITY 7.1 Lessee's Insurance ..................... 6 7.2 Covenant to Indemnify and Hold Harmless ..... 7 7.3 Waiver of Subrogation .................. 8 ARTICLE VIII. UTILITY CHARGES ..................... 8 ARTICLE IX. ALTERATIONS AND ADDITIONS............ 9 ARTICLE X. CASUALTY LOSS AND RESTORATION 10.1 Non -Termination ...................... 9 10.2 Repair of Damage ..................... 9 10.3 Continued Operations .................. 10 ARTICLE XI. ASSIGNMENT AND SUBLETTING 11.1 Agency's Consent Required .............. 10 11.2 Lessee Remains Obligated ............... 10 ARTICLE XII. DEFAULT 12.1 Events of Default ..................... 11 12.2 Remedies .......................... 11 12.3 Default by Lessor ..................... 13 12.4 Legal Expenses and Collection Costs ........ 14 ARTICLE XIII. HOLDING OVER ...................... 14 Paae ARTICLE XIV. ACCESS BY LESSOR ................... 14 ARTICLE IV. QUIET ENJOYMENT ................... 15 ARTICLE XVI. FURNITURE, FIXTURE AND EQUIPMENT FINANCING ................ 15 ARTICLE XVII. TAXES .......................... '.. 16 ARTICLE XVIII. FORCE MAJEURE ..................... 16 ARTICLE IXX. MISCELLANEOUS 19.1 Waiver ............................. 17 19.2 Notices ............................ 17 19.3 Relationship to Parties .................. 17 19.4 Accord and Satisfaction ................. 17 19.5 Time of Essence ...................... 18 19.6 Remedies Cumulative .................. 18 19.7 Effect of Invalidity ...... ............. 18 19.8 Successors and Assigns ................ 18 19.9 Entire Agreement ..................... 18 19.10 Interest of Past -Due Obligations ........... 18 19.11 Execution of Lease; No Option ............ 19 19.12 Corporate Authority ............... ..... 19 19.13 Controlling Law ...................... . 19 19.14 Specific Performance .................. 19 19.15 Survival of Indemnities and Warranties ...... 19 THIS LEASE AGREEMENT (the "Lease") is entered into this 7th day of June, 1996, by and between the CITY OF LA QUINTA ("Lessor"), a municipal corporation formed under the laws of the State of California, and the FAMILY YMCA OF THE DESERT, a California nonprofit corporation ("Lessee"). In consideration of the payments to be made hereunder and the covenants and agreements contained herein, the parties hereto agree as follows: ARTICLE I. TERM OF LEASE 1.1 Premises. Lessor is currently the owner of that parcel of real property located int he City of La Quinta, legally described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Premises"). The address of the Premises is 49-955 Park Avenue, La Quinta, California. Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the Premises upon the terms and conditions expressed herein. 1.2 Reservation. Lessor reserves to itself, its successors, and assigns, together with the right to grant and transfer all or a portion of the same, the non-exclusive right to enter upon the Premisesin accordance with any rights of Lessor set forth in this Lease. 1.3 Exceptions to Leasehold Estate. This Lease is made subject to all covenants, conditions, restrictions, reservations, rights, rights -of -way, easements, and all other matters of record or apparent upon a visual inspection of the Premises affecting the Premises or the use thereof on the date this Lease is executed by Lessee. 1.4 Term. The "Term" of this Lease shall be five (5) years, commencing on the date (the "Term Commencement Date") that this agreement has been executed. 1.5 Date of Lease and Legal Effect. The terms, covenants 'and conditions of this Lease shall become legally binding on the Term Commencement Date. 1 ARTICLE II. OWNERSHIP OF IMPROVEMENTS 2.1 Ownership of Improvements and Furnishings. Fixtures. Equipment and Personal Property. During the entire Term of this Lease the Improvements and all Fixtures that are made in or on the Premises by Lessee, and all changes, alterations, Improvements and additions thereto, shall be owned by and considered as the property of Lessor. Furniture and Equipment that is purchased by the Lessee that is not affixed to the Improvements or property shall be owned by and considered as property of Lessee. ARTICLE III. RENT 3.1 Minimum Rent. During the Term of this Lease, Lessee shall pay to Lessor for each year from the Term Commencement Date One Dollar ($1.00) (the "Rent"). The'Rent owing for the full Term of the Lease shall be payable in advance of the Term Commencement Date. 3.2 Additional Payments. Except as otherwise provided in this Lease, all sums of money or charges whatsoever required to be paid by Lessee to Lessor under this Lease other than Rent shall be due and payable fifteen (15) days after demand, presented in writing by certified mail, without any deductions or offsets whatsoever. Lessor shall have no obligation to bill Lessee for monthly Rent, security charges, or other operational expenses. Lessee's failure to pay any such amounts or charges when due shall carry with it the same consequences as Lessee's failure to pay Rent and shall be deemed to be additional Rent. 3.3 Place of Payment; Late Payments. Lessee agrees to pay the rental and other charges herein reserved to Lessor at 78-495 Calle Tampico, La Quinta, California 92253, payable to Lessor or to such other person and/or at such other location as Lessor may from time to time designate in writing. All payments shall be made by check for an account in lawful money of the United States. All payments requiring proration shall be prorated on the basis of a thirty (30) day month. ARTICLE IV. USE OF PREMISES AND COMPLIANCE WITH LAW 4.1 Permitted Uses. Lessor's primary purpose for entering into this Lease is to provide for the operation of the Facility which shall be used to provide child care services and a center for the youth oriented activities of other community organizations. In furtherance of this purpose, Lessee shall use the Premises to operate thereon the Facility. Lessee shall not use the Premises for any other purposes without prior written consent of Lessor. 2 :r Lessee, at Lessee's expense, shall promptly comply with all present and future laws, ordinances, orders, rules, regulations and requirements of all governmental authorities having jurisdiction affecting the Premises or the cleanliness, safety, occupancy and use of the same, whether or not any such law, ordinance, order, rule, regulation or requirement is substantial, or foreseen or unforeseen, or ordinary or extraordinary or shall necessitate structural changes of the Improvements or interfere with the use and enjoyment of the Premises. If any governmental license or permit shall be required for the proper and lawful conduct of the Premises as a child care center, Lessee shall procure and thereafter maintain such license or permit at its sole cost and expense and shall submit the same for inspection by Lessor. 4.2 Use of Premises by Community Organizations. Lessor agrees that the Premises shall be available for use by community organizations other than Lessee. Lessee shall be responsible for scheduling use of the Premises by community organizations which shall be available to these organizations after 6:30 P.M. Monday through Friday and all day Sunday. Lessor shall be responsible for scheduling use of the Premises by community organizations which shall be available all day Saturday. Lessee and Lessor shall incorporate a security deposit system when scheduling the facility to cover any damages to furniture, equipment or property. 4.3 Nondiscrimination. Lessee covenants for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through it, that this Lease is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, national origin, ancestry, political affiliation or physical handicap associated with the construction, operation and maintenance of the Premises. 4.4 City Resident Incentives. Lessee is hereby required to develop an incentive program (the "Program") for residents of the City of La Quinta in the form of priority placement on waiting lists, if any. The Program shall provide preference for admission in the following order: (i) children of La Quinta residents; (ii) children of persons who work in La Quinta; and (iii) all other applicants. Failure to provide a Program shall constitute a "default" as such term is used in Section 12.1 hereof. 4.5 Reports. Lesse shall prepare and submit to the City of La Quinta a report accounting for expenditures on a quarterly basis. ARTICLE V. PAYMENT OF EXPENSES Lessee shall pay all of the costs and expenses in the operation, management, and maintenance of the Facility. Such expenses shall include, without limitation, the 3 C following: (i) expenses incurred by Lessee in connection with the Facility for general maintenance, painting, lighting, cleaning, trash removal, security, fire protection; (ii) all charges, surcharges and other levies imposed by, and all costs (whether or not capital in nature) of compliance with the requirements of any federal, state or local governmental agency regulating use of the Facility as a child care center; and (iii) the actual cost of repairs to the Facility, excluding major repairs. Lessor shall pay the costs of major repairs to the Facility, which shall include repairing and replacing the roof, plumbing, heating, air conditioning and electrical systems. Prior to authorization of any major repairs, Lessee shall obtain written authorization by Lessor indicating approval of contractor and amount of contractor's estimate. ARTICLE VI. MAINTENANCE OF LEASED PREMISES •• •. •� • &. -t. (a) Lessee's Obligations. Lessee, at Lessee's expense without cost to Lessor, shall maintain in good order, condition, quality, and repair, the Facility and every part thereof and any and all appurtenances thereto wherever located, and all other repairs, replacements, renewals and restorations, ordinary and extraordinary, foreseen and unforeseen. If Lessee wishes to make any repairs to the Premises which would result in a change in use of the Premises permitted by this Lease or adversely affect the value of the Premises or Improvements or materially change the external structure or appearance of the Facility, Lessee shall submit to Lessor for its approval documentation which describes the desired repairs, including floor plans, building sections, building materials and components, samples of proposed exterior building materials, and the like, to the extent relevant to the particular repair. Lessor's approval shall be given within a reasonable period of time not to exceed sixty (60) days after receipt by Lessor from Lessee of all necessary documents and information relating to such repairs (which sixty (60) day period does not include the Lessor's normal development review requirements) and such approval shall not be unreasonably withheld provided that the proposed repair shall not, in Lessor's reasonable judgment, impair or diminish the value or structural integrity of the Improvements, have the likely result of diminishing the income or revenues of Lessee over the Term of the Lease, or not be in harmony with neighboring buildings. (b) Standard of Maintenance. Lessee shall keep and maintain the Premises and the Improvements in a clean, sanitary and safe condition in accordance with the laws of the State of California and in accordance with all directions, rules and regulations of the health officer, Fire Marshall, building inspector or other proper 4 officials of the governmental agencies having jurisdiction, and Lessee shall comply with all requirements of laws and ordinances affecting the Premises and the• Improvements, all at the sole cost and expense of Lessee. At the time of the expiration of the tenancy created herein, Lessee shall surrender the Premises and the Improvements thereon in good order, condition and repair. (c) Liens Lessee shall keep the Premises, the Improvements, or any part thereof free from any and all liens arising out of any work performed, materials furnished or obligations incurred by or for Lessee, and agrees to cause to be discharged of record any mechanic's or materialmen's lien within twenty (20) days after the lien has been filed or within ten (10) days after receipt of written request from Lessor, whichever shall be the sooner. Lessee shall give Lessor at least fifteen 0 5) days written notice prior to commencing or causing to be commenced any work on the Premises (whether prior or subsequent to the commencement of the Term), so that Lessor shall have reasonable opportunity to file and post notices of non - responsibility for Lessee's work. Lessor may condition its consent to work upon Lessee posting lien and material and/or completion bonds in amounts as may be necessary to cover the anticipated cost of such work and potential overruns. Lessee shall reimburse Lessor for any and all costs and expenses which may be incurred by Lessor by reason of the filing of any such liens and/or removal of same, such reimbursement to be made within ten (10) days after receipt by Lessee from Lessor of a statement setting forth the amount of the costs and expenses. (d) Lessor's Substitute Performance. In the event Lessee fails, refuses or neglects to commence and complete promptly and adequately any of the Improvements, required repairs or maintenance within the times set forth in the Schedule of Performance, to remove any lien, to pay any cost or expense relating to such matters, or to otherwise perform any act or fulfill any obligation required of Lessee pursuant to this Section 6.1, Lessor may, but shall not be required to, make or complete any such repairs, remove such lien, or pay such cost and expense, and Lessee shall reimburse Lessor for all costs and expenses of Lessor thereby incurred within fifteen 0 5) days after receipt by Lessee from Lessor of a statement setting forth the amount of such costs and expenses which shall be deemed to be additional Rent and subject to the same consequences as herein provided for failure to pay Rent. If reasonably possible under the circumstances, Lessor shall give Lessee written notice fifteen 0 5) days prior to commencement of any substitute performance. Any failure by Lessor to give such notice, however, shall not prejudice Lessor's rights hereunder or alter Lessee's obligations hereunder. Lessor's rights and remedies pursuant to this subsection (d) shall be in addition to any and all other rights and remedies provided under this Lease or at law. E (a) Grounds and Playground. Lessor shall maintain the grounds surrounding the Facility including all 1andscaping areas, playgrounds, and equipment excluding trash enclosure areas which shall be the responsibility of Lessee. Lessor shall also maintain, repair and replace the parking areas located on the Premises. (b) Trash Removal. Lessor shall be responsible for removing all trash on the Premises which is generated by Lessor's maintenance of the grounds. ARTICLE VII. INSURANCE AND INDEMNITY 7.1 Lessee's Insurance. (a) Types. Lessee, at no cost and expense to Lessor, shall procure and keep in full force and effect during the Term or cause to be procured and kept in full force and effect for the mutual benefit of Lessor and Lessee, insurance policies meeting the minimum requirements set forth below or such greater requirements that are generally obtained from time to time for properties, improvements, activities, and operations similar to those on the Premises in the Southern California area: (i) comprehensive general liability insurance with respect to the Premises and the operations of or on behalf of Lessee or its agents, officers, directors, and employees in, on or about the Premises in an amount not less than One Million Dollars ($1,000,000) per occurrence combined single limit bodily injury, personal injury, death and property damage liability per occurrence, subject to such increases in amount as Lessor may reasonably require from time to time. Coverage shall include, but not be limited to personal injury liability, premises and operation, blanket contractual, cross liability, severability of interest, broad form property damage, and independent contractors. The policy or policies shall include that Lessor and its officers, employees, and agents shall be additional insured under such policy or policies; (ii) worker's compensation coverage as required by the laws of the State of California together with employer's liability coverage; (iii) with respect to the Improvements, fixtures, furnishings, equipment and other items of personal property located on or in the Premises, insurance against fire, peril of flood, extended coverage, vandalism and malicious mischief, and such other additional perils, hazards and risks as now 2 are or may be included in standard "all risk" forms in general use in Riverside County, California, for an amount equal to not less than the full current actual replacement cost thereof. Lessor shall be an additional insured under such policy or policies and such insurance shall contain a replacement cost endorsement; (b) Standard. All policies of insurance required to be carried by Lessee under this Lease shall be written by responsible and solvent insurance companies authorized to do business in the State of California. Any such insurance required of Lessee hereunder may be furnished by Lessee under any blanket policy carried by it or under a separate policy therefor. A copy of each paid -up policy evidencing such insurance (appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such policy has been issued, providing the coverage required by this Section and containing provisions specified herein, shall be delivered to Lessor prior to the date Lessee is given the right of possession of the Premises or as Lessor may otherwise require, and upon renewals, not less than thirty (30) days prior to the expiration of such coverage. Lessor may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Lessee hereunder. In no event shall the limits of any policy be considered as limiting the liability of Lessee under this Lease. (c) Specific Provisions in Policy. Each policy evidencing insurance required to be carried by Lessee pursuant to this Article shall contain the following provisions or clauses: (i) a provision that the insurer will not cancel or materially change the coverage provided by such policy without first giving Lessor thirty (30) days prior written notice; and (ii) a waiver by the Lessee's insurer of any right to subrogation against Lessor, its agents, employees or representatives which arises or might arise by reason of any payment under such policy or policies or by reason of any act or omission of Lessor, its agents, employees or representatives. (d) Lessor's Substitute Performance. In the event that Lessee fails to procure, maintain and/or pay for at the times and for the durations specified in this Section 7.1, • any insurance required by this Section, or fails to carry insurance required by law or governmental regulation, Lessor may (but without obligation to do so) at any time or from time to time, after thirty (30) days written notice to Lessee, procure such insurance and pay the premiums therefor, in which event Lessee shall repay Lessor all sums so paid by Lessor.together with interest thereon as provided elsewhere herein, within fifteen 0 5) days following Lessor's written demand to Lessee for such payment. 7 7.2 Covenant to Indemnify and Hold Harmless. Lessee covenants to defend and indemnify Lessor, its officers, directors, partners, representatives, agents and employees, and save them from and against any and all claims, actions, losses, damages, liability, and expenses, including attorneys' fees, in connection with the loss of life, bodily injury and/or damage to property arising from or out of or in connection with any occurrence in, upon or at the Premises, or the occupancy or use by Lessee of the Premises or any part thereof, or arising from or out of Lessee's failure to comply with any provision of this Lease or otherwise occasioned wholly or in part by any act or omission of Lessee, its agents, directors, representatives, contractors, employees, servants, invitees or licensees, excepting that the foregoing indemnification and hold harmless provision shall not apply in the event of any uninsured willful or actively negligent misconduct on behalf of Lessor or any of its agents, representatives, or employees, or in the event any such claims, actions, losses, damages, liability, costs, or expenses arise out of a breach by Lessor of its obligations under this Lease. If Lessor is made a party to any litigation commenced by or against Lessee, then Lessee shall protect, defend and hold Lessor harmless and shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Lessor in connection with such litigation. Lessor may, at its option, require Lessee to assume Lessor's defense in any action covered by this Section 7.2 through counsel selected by Lessor and reasonably satisfactory to Lessee. Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of. damage to property or injury to persons in, upon or about the Premises and Improvements from any cause whatsoever, and Lessee hereby waives all its claims in respect thereof against Lessor excepting only damage or injury arising out of (i) the uninsured willful or actively negligent misconduct of Lessor or any of its agents, representatives, or employees, or (ii) a breach by Lessor of its obligations under this Lease. 7.3 Waiver of Subrogation. Each party hereto does hereby waive, remise, release and discharge the other party hereto and any officer, director, shareholder, beneficiary, partner, agent, employee or representative of such other party, of and from any liability whatsoever her arising from loss or damage for which insurance containing a waiver of subrogation is carried by the injured party under such insurance. Lessee shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease. ARTICLE VIII. UTILITY CHARGES Lessee shall pay all charges for gas, water, sewer, electricity, telephone and other utility services used on or in the Premises. If any such charges are not paid when due, Lessor may pay the same after giving Lessee fifteen (15) days prior written notice, and any amount so paid by Lessor shall thereupon become due to Lessor from Lessee as additional Rent. ARTICLE IX. ALTERATIONS AND ADDITIONS Without Lessor's prior written consent, which consent may be withheld or granted in Lessor's sole discretion, Lessee shall not have the right to make changes or alterations to the Improvements or the Premises, except on the following conditions: (a) Lessee shall not make any alterations, whether structural or non- structural or non-structural, which will decrease the value of the Premises or the Improvements. If the cost of such changes or alterations to the Improvements or the Premises exceeds Five Thousand Dollars ($5,000), Lessee shall submit to Lessor plans and specifications for approval. (b) Before the commencement of any work, Lessee shall pay the amount of any increased premiums on insurance policies provided for hereunder; (c) Lessor shall in no event be required to make any alterations, rebuilding, replacement, changes, additions or Improvements or repairs to the Premises, except as specifically provided in this Lease; (d) All such changes, alterations, rebuilding, replacements, additions, improvements and repairs to the Premises made by Lessee shall be deemed to have attached to the realty and to have become the property of Lessor upon the expiration of the Term or upon sooner termination of this Lease. ARTICLE X. CASUALTY LOSS AND RESTORATION 10.1 Non -Termination. Except as provided herein, no destruction or damage to the Improvements or the Premises by fire, windstorm or other casualty whether insured of uninsured shall entitle Lessee to terminate this Lease. 10.2 Repair of Damage. (a) Obligation to Repair Damage Due to Casualty Covered by Insurance. Subject to Section 10.5 below, if the Premises shall be totally or partially destroyed or rendered wholly untenantable by fire or other casualty required to be insured against by Lessee, Lessor shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon 0 receipt of insurance proceeds, promptly and diligently commence the repair or replacement of the Improvements to substantially the same condition as they are required to be maintained in under this Lease, so long as the insurance proceeds are sufficient to cover the actual cost of restoration, and shall complete the same as soon as possible so that Lessee may continue in occupancy. If, however, the insurance proceeds are insufficient or the then -existing laws of any other governmental agencies with jurisdiction over the Premises do not permit the restoration, Lessor may elect to terminate this Lease by giving notice to Lessee. Notwithstanding the above, the Lessor is not required to obtain earthquake coverage insurance and shall not be obligated to reconstruct following damage sustained due to an earthquake unless such damage is covered by other provisions of its insurance policy (i.e. fire). 10.3 Continued Operations. During any period of repair, Lessee shall continue, or cause the continuation of, the operation of its programs on the Premises and use of the Facility by community groups to the extent reasonably practicable. However, irrespective of the continued operation during such period of repair, the Rent payable hereunder shall not be deferred and shall not be abated. Upon completion of such repair and restoration, Lessee shall promptly refixture and restock the Improvements, if necessary, substantially to the condition prior to the casualty, or as otherwise required by this Lease, whichever is greater, and shall reopen if closed by the casualty., ARTICLE XI. ASSIGNMENT AND SUBLETTING 11.1 Agency's Consent Required. Notwithstanding any provision herein to the contrary, Lessee agrees and covenants (which covenants shall be binding upon the heirs, executors, and administrators of Lessee) that Lessee shall not, either; voluntarily or by operation of law, assign, sell, encumber, pledge or otherwise transfer all or any part of Lessee's leasehold estate hereunder, or permit the Premises to be occupied by anyone other than Lessee, Lessee's employees or invitees, or sublet the Premises, or any portion thereof, without Lessor's prior written' consent. No assignment, whether voluntary or involuntary, by operation of law, under legal process or proceedings, by receivership, in bankruptcy, or otherwise, and no subletting shall be valid or effective without such prior written consent, and at Lessor's election, shall constitute a default. 11.2 Lessee Remains Obligated. No subletting or assignment, even with the consent of Lessor, shall relieve Lessee of its obligation to pay Rent and all of its other obligations hereunder. The acceptance by Lessor of any payment due hereunder from 10 any person or entity other than Lessee shall not be construed as a waiver by Lessor of any provision of this Lease or as a consent to any assignment or subletting. Consent by Lessor to an assignment of the Lease or to a subletting of the Premises shall not operate as a waiver or estoppel to the future enforcement by Lessor of its rights pursuant to this Lease. ARTICLE XII. DEFAULT 12.1 Events of Default. The word "default", as used in this Section 12.1, shall mean and include any one or more of the following events or occurrences: (a) The failure by Lessee to make any payment of rent, or other payment required to be made by Lessee hereunder, when due and the continuance of such failure for a period of fifteen (15) days after Lessor has given Lessee written notice specifying the same; (b) The failure of Lessee to perform any term, condition, covenant or agreement of this Lease, excluding the payment of Rent, and the continuation of such failure for a period of thirty (30) days after Lessor shall have given Lessee written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within thirty (30) days, if Lessee shall not promptly, within thirty (30) days after receipt of such notice, commence to remedy the situation by a means that can reasonably be expected to remedy the situation within a reasonable period of time, and diligently pursue the same to completion; (c) . The failure of Lessee to make the Improvements listed in the Schedule of Performance by the respective times set therefor; (d) The abandonment by Lessee of the Premises or a substantial portion thereof; (e) Lessee's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or for a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged a bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganizations or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Lessee's assets or of Lessee's interest in this Lease; (a) General. In the event of any default by Lessee, including the expiration of any applicable cure period, Lessor may: 11 (i) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event Lessor shall be entitled to recover from Lessee: (1) The worth at the time of award of the unpaid Rent which had been earned at the time of termination; (2) The worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such loss that Lessee proves could have been reasonably avoided; (3) The worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such loss that Lessee proves could be reasonably avoided; and (4) Any other amount deemed necessary and/or allowable by applicable statute or decision to compensate Lessor for all the detriment proximately caused by Lessee's failure to perform its obligations under this Lease or which, in the ordinary course of events, would be likely to result thereform, including, but not limited to, the cost of recovering possession of the Premises, expenses of reletting, expenses of restoring the Premises to the condition required hereunder (if applicable), reasonable attorneys' fees, and any.other reasonable costs. The "worth at the time of award" of the amounts referred to in subparagraphs (1) and (2) above shall be computed by allowing interests at a rate equal to ten percent (10%) from the dates such amounts accrued to Lessor until the date of payment by Lessee. (ii) Lessor may terminate this Lease by express written notice to Lessee of its election to do so. Such termination shall not relieve Lessee of any obligation hereunder which has accrued prior to the date of such termination. In the event of such termination, Lessor shall be entitled to recover from Lessee the amounts determined pursuant to paragraph (1) above. (b) Reasonable Rental Value. In any action for unlawful detainer commenced by Lessor against Lessee by reason of any default hereunder, 12 the reasonable rental value of the Premises for the period of the unlawful detainer shall be deemed to be the amount of Rent and other charges reserved in this Lease for such period unless Lessor or Lessee shall prove to the contrary by competent evidence. (c) Cumulative Remedies. Except as may be specifically provided herein, the rights and remedies reserved to Lessor and Lessee herein, including those not specifically described, shall be cumulative and, except as provided by California statutory or decisional law in effect at the time, either Lessor or Lessee may pursue any or all of such rights and remedies at the same time or otherwise. (d) Lessor's Non -Waiver. No delay or omission of Lessor to exercise any right or remedy shall be construed as a waiver of any right or remedy or of any default by Lessee hereunder. The acceptance by Lessor of Rent or any additional Rent hereunder shall not be a waiver of any preceding breach or default by Lessee of any provision hereof, other than the failure of Lessee to pay the particular Rent accepted, regardless of Lessor's knowledge of such preceding breach or default at the time of acceptance of such rent, or a waiver of Lessor's right to exercise any remedy available to Lessor by virtue of such breach or default. The acceptance of any payment from a debtor in possession, a trustee, a receiver or any other person acting on behalf of Lessee or Lessee's estate shall not waive or cure a default under Section 12.1 (e). (e) Lessor's Reentry. Lessee hereby irrevocably consents to Lessor's peaceable reentry, if Lessor so elects, to the Premises upon the occurrence of any of the events of default specified in Section 12.2 (a) (ii) above, including the expiration of any applicable cure period. (f) Lessor's Advances. In the event of any default by Lessee in the payment of money, other than Rent, or the performance of Lessee's obligations required under this Lease, and the expiration of any period expressly provided for herein for Lessee to cure said default after the delivery of notice by Lessor, in addition to the other remedies herein granted to Lessor, Lessor may, but shall not be obligated to do so, and without waiving or releasing Lessee from any obligations of this Lease, make any payment and perform any other act on Lessee's part to be made or performed as provided in this Lease. All sums paid by Lessor and all necessary incidental costs, together with interest thereon at the rate of ten percent (10%) per annum from the date of the payment by Lessor shall be payable by Lessee to Lessor on demand. The sums shall be deemed to be additional Rent and subject to the same consequences as herein provided for failure to pay Rent. 12.3 Default by Lessor. Lessor shall not be deemed to be in default in the performance of any obligation required to be performed by it hereunder unless and 13 until it has failed to perform such obligation within thirty (30) days after written notice by Lessee to Lessor specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Lessor's obligation is such that more than thirty (30) days are required for its performance, then Lessor shall not be deemed to be in default if it shall commence such performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. 12.4 Legal Expenses and Collection Costs. If either party incurs any expense, including actual costs of collection, reasonable attorneys' fees, expenses of discovery, preparation for litigation, expert witness fees and litigation expenses and costs, in connection with any action or proceeding instituted by either party by reason of any default , or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover its reasonable expenses from the other party. For purposes of this provision, in any unlawful detainer or other action or proceeding instituted by Lessor based upon any default or alleged default by Lessee hereunder, Lessor shall be deemed the prevailing party if (a) judgement is entered in favor of Lessor or (b) prior to trial or judgement Lessee shall pay the Rent and charges claimed by Lessor, or eliminate the condition(s), cease the act(s) or otherwise cure the omission(s) claimed by Lessor to constitute a default by Lessee hereunder. ARTICLE XIII. HOLDING OVER This Lease shall terminate and become null and void without further notice upon the expiration of the Term herein specified, and any holding over by Lessee after such expiration shall not constitute a renewal or extension hereof or give Lessee any rights under this Lease, except when in writing signed by both parties hereto. ARTICLE XIV. ACCESS BY LESSOR In addition to the right of Lessor to reserve use of the Facility under Article IV, Section 4.2, Lessor and those agents, contractors, servants and employees of Lessor who are identified in writing to Lessee shall have the right, after reasonable notice to Lessee, to enter the Premises during normal business hours (a) to examine the Premises, to perform any obligations of Lessor or to exercise any right or remedy reserved to Lessor in this Lease; (b) to exhibit the Premises to prospective purchasers, mortgagees or lessees of Lessor's interest therein; (c)to make such repairs as Lessor may be entitled to make after a default by Lessee under Article XII above; and (d) to take all materials into and upon the Premises that may be required in. connection with 14 such repairs, provided that any such entry shall be performed in such a manner that does not unreasonably interfere with Lessee's use of the Premises. If Lessor exercises its rights of entry in compliance with this Article XIV, such entry shall not constitute a constructive or actual eviction of Lessee, in whole or in part, and the Rent shall not abate while any such repairs are being made. If, during the last month of the Term, Lessee shall have removed all or substantially all of Lessee's property therefrom, Lessor may immediately enter and alter, renovate and redecorate the Premises without elimination or abatement of Rent and without other compensation and such action shall have no effect upon this Lease. Nothing herein contained, however, shall be deemed or construed to impose upon Lessor any obligation, responsibility or liability whatsoever for the care, supervision or repair of the Premises. ARTICLE XV. QUIET ENJOYMENT Upon payment by Lessee of the Rents provided herein, and upon the observance and performance of all of the covenants, terms and conditions on the part of Lessee to be performed hereunder, Lessor covenants and warrants that Lessee may peaceably and quietly. hold and enjoy the Premises for the Term. ARTICLE XVI. FURNITURE, FIXTURE, AND EQUIPMENT FINANCING It is contemplated that during the Term of this Lease, Lessee shall place or cause the placement from time to time of Furniture, Fixtures or Equipment (collectively "FF&E") on the Premises which shall be subject to lease and/or purchase financing encumbrances (collectively "FF&E Financing"). Prior to Lessee having the right to place any FF&E on the Premises subject to FF&E Financing, Lessee shall be required to deliver to Lessor written notice of any such proposed FF&E Financing at least sixty (60) days prior to the creation of such FF&E Finaincing, together with documentation in reasonable detail so that Lessor may review and approve or disapprove, in Lessor's reasonable discretion, the FF&E Financing. Such information shall include, but not be limited to, the following: (1) a complete description of the FF&E; (ii) the lease term, Rent payments and security deposits required in connection with any leasing of FF&E; (iii) the purchase price, terms of payment and conditions of any purchase or loan in connection with purchasing of FF&E; and (iv) copies of all relevant documents to be executed between Lessee and the lender, seller or lessor of the particular FF&E in question. For a period of thirty (30) days following receipt by Lessor of the notice from Lessee together with all of the information required above, Lessor may approve or disapprove such FF&E Financing by written notice to Lessee. Lessor's approval of any such FF&E Financing shall not be unreasonably withheld. In the event Lessor reasonably objects to all or a portion of such FF&E 15 Financing, Lessor shall within said thirty (30) day period give Lessee written notice of its objection, detailing the reasons therefor. In such event, Lessee shall be prohibited from entering into such FF&E Financing but Lessee may submit to Lessor such response to Lessor's objections and/or revisions to the terms and conditions of the FF&E Financing in order to satisfy Lessor's objections thereto. Any such newly submitted information shall again be subject to Lessor's thirty (30) day right to review and reasonably object thereto. Lessor's failure to timely object within said thirty (30) day period to any such proposed FF&E Financing for which proper notice has been given by Lessee to Lessor shall constitute approval of the particular FF&E Financing in question and no further approval by Lessor for such FF&E Financing shall be required. Lessor's rights hereunder shall not be construed as requiring Lessor to participate in any way in any such FF&E Financing nor shall approval by Lessor of any such FF&E Financing obligate Lessor in any manner. ARTICLE XVII. TAXES. Lessee shall be.responsible for, and agrees to pay, prior to delinquency, any and all taxes, assessments, installments of taxes, levies, fees, and other governmental charges of every kind or nature (hereinafter collectively called "Taxes") in the event such Taxes are levied or assessed by municipal, county, state, federal, or other taxing or assessing authorities or governmental agencies or entities upon, against, or with respect to (i) the Premises or any portion thereof; (ii) all fixtures, equipment, and any other property of any kind owned by Lessee or placed, installed, or located within, upon, or about the Premises for which Lessor might be assessed or which might become a lien on the Premises if not paid by Lessee; (iii) all alterations, additions, and improvements of whatsoever kind or nature, if .any, made to the Premises or the Improvements; (iv) rentals or other charges payable by Lessee to Lessor (other than state and federal income taxes applicable to Lessor); and (v) any other interest in the Premises (including the leasehold interest created by this Lease), irrespective of whether any of the items described in clauses (1) through (v) above are assessed as real or personal property, and irrespective of whether any of such items are assessed to or against Lessor, Lessee or any other person. ARTICLE XVIII. FORCE MAJEURE In the event the performance by either party of any of its obligations hereunder is delayed by reason of the act or neglect of the other party, act of God, stormy or inclement weather, strike, labor dispute, boycott, lockout or other like defensive . action by such party, inability to obtain labor or materials, governmental restrictions, riot, insurrections, war, catastrophe, casualty, act of the public enemy, or any other cause, whether similar or dissimilar, beyond the reasonable control of the party from 16 whom such performance is due ("unavoidable delays"), the period for the commencement or completion thereof shall be extended for a period equal to the period during which performance is so delayed. ARTICLE IXX. MISCELLANEOUS 19.1 Waiver. The waiver by either Lessor or Lessee of any breach of any term, condition or covenant contained herein shall not be deemed a waiver of such term, condition or covenant or any subsequent breach of the same or any other term, condition or covenant contained herein. 19.2 Notices. All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either Lessor or Lessee to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective parties at their addresses set forth below: To Lessor: City of La Quinta P.O. Box 1504 78-495 Calle Tampico La Quinta, California 92253 To Lessee: Family YMCA of the Desert 43-930 San Pablo Avenue Palm Desert, California 92260 19.3 Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of Lessor and Lessee. 19.4 Accord and Satisfaction. No payment by Lessee or receipt by Lessor of a lesser amount than the Rent or other charges herein stipulated shall be deemed to be other than on account of the earliest due stipulated Rent or other charges, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent or other charges be deemed an accord and satisfaction, and Lessor shall accept such check or payment without prejudice to Lessor's right to recover the balance of such Rent or other charges or pursue any other remedy in this Lease provided. 17 19.5 Time of Essence. Time is hereby expressly declared to be of the essence of this Lease and of each and every term, covenant and condition hereof which relates to a date or period of time. 19.6 Remedies Cumulative. The remedies herein given to Lessor and Lessee shall be cumulative and are given without impairing any other rights or remedies given Lessor and Lessee by statute or law now existing or hereafter enacted, and the exercise of any one (1) remedy by Lessor or Lessee shall not exclude the exercise of any other remedy. 19.7 Effect of Invalidity. If any term or provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Lease shall be valid and enforceable to the fulllest extent permitted by law. No acquisition by Lessor of all or any of the interest of Lessee in or to the Premises or the Improvements, and no acquisition by Lessee of all or any interest of Lessor in or to the Premises shall constitute or work a merger of the respective interest, unless expressly provided for. a 19.8 Successors and Assigns. This Lease and the covenants and conditions contained herein shall be binding upon and inure to the benefit.of and shall aptly to the successors and assigns of Lessor and to the permitted successors and assigns of Lessee, and all references in this Lease to "Lessee" or "Lessor" shall be deemed to refer to and include all permitted successors and assigns of such party. 19.9 Entire Agreement. This Lease and the exhibits hereto contain the entire agreement of Lessor and Lessee with respect to the matters covered hereby, and no other agreement, statement of promise made by either Lessor or Lessee which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by Lessor and Lessee. 19.10 Interest on Past -Due Obliaations. Any amount due from Lessee to Lessor hereunder which is not paid when due (including, without limitation, amounts due as reimbursement to Lessor for costs incurred by Lessor in performing obligations of Lessee hereunder upon Lessee's failure to so perform) shall bear interest at the rate of ten (10%) percent from the date due until paid, unless otherwise specifically provided herein, but the payment of the interest shall not excuse or cure any default by Lessee under this Lease. 18 19.11 Execution of Lease: No Option. The submission of this Lease to Lessee shall be for examination purposes only, and does not and shall not constitute a reservation of or option for Lessee to lease, or otherwise create any interest by return to Lessor shall not be binding upon Lessor notwithstanding any time interval, until Lessor has in fact executed and delivered this Lease to Lessee. 19.12 Corporate Authority_. Each individual executing this Lease on behalf of a corporation, nonprofit corporation, partnership or other entity or organizations, represents and warrants that he is duly authorized to execute and deliver this Lease on behalf of said corporation, partnership, entity or organization and that this Lease is binding upon same in accordance with its terms. Lessee shall, at Lessor's request, deliver a certified copy of its board of directors resolution or certificate authorizing or evidencing such execution. 19.13 Controlling Law. This Lease shall be governed by and construed in accordance with the laws of the State of California. Specific Performance. Nothing contained in this Lease shall be construed as or shall have the effect of abridging the right of either Lessor or Lessee to obtain specific performance of any and all of the covenants or obligations of the other party under this Lease. 19.15 Survival of Indemnities and Warranties. The obligations of the indemnifying party under each and every indemnification and hold harmless provision contained in this Lease shall survive the expiration or earlier termination of this Lease to and until the last to occur of (a) the last date permitted by law for the bringing of any claim or action with respect to which indemnification may be claimed by the indemnified party against the indemnifying party under such provision or (b) the date on which any claim or action for which indemnification may be claimed under such provision is fully and finally resolved, and, if applicable, any compromise thereof or judgement or award thereon is paid in full by the indemnifying party and the indemnified party is reimbursed by the indemnifying party for any amounts paid by the indemnified party in compromise thereof or upon judgment or award thereon and in defense of such action or claim, including reasonable attorneys' fees incurred. The representations, warranties, and covenants of the parties contained herein shall survive the termination of this Lease without regard to any investigation made by the parties. 19 IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first above written. Approved As to Form: ,'J.'em ,1 Dawn C. Honeywell, City Attorney "LESSOR" CITY OF LA QUINTA 20 ' 11 Glenda L. Holt,Mayor "LESSEE" EXHIBIT A LEGAL DESCRIPTION OF PREMISES CHILD CARE FACILITY PARCEL C BEGINNING AT THE SOUTHWEST CORNER OF LOT"H" OF PARCEL MAP NO. 20469 AS RECORDED IN BOOK 140, PAGES 95 THROUGH 100 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. THENCE WESTERLY PARALLEL TO THE SOUTH LINE OF SECTION 31, AS SHOWN ON PARCEL MAP 20862 AS RECORDED IN BOOK 133, PAGES 17 & 18 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA N 89 58'50" W, A DISTANCE OF 44.00 FEET; THENCE NORTHERLY PARALLEL TO THE WEST LINE OF SAID LOT "H", N 00 19'35" W, A DISTANCE OF 585.01 FEET TO A POINT ON THE NORTH LINE OF PARCEL 1 OF SAID PARCEL MAP 20862 THENCE EASTERLY ALONG SAID LINE S 89 58'50" E,.A DISTANCE OF 44.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT "H", SAID POINT ALSO BEING THE SOUTHEAST CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 20862; THENCE PERPENDICULAR TO THE WEST LINE OF SAID LOT "H", N 89 40'25" E, A DISTANCE OF 32.00 FEET; THENCE NORTHERLY PARALLEL TO THE WEST LINE OF SAID LOT "H", N 00 19'35" E, A DISTANCE OF 320.24 FEET TO A NON -TANGENT CURVE HAVING A RADIAL BEARING OF S 24 31'41" E AND IS CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 82.00 FEET AND A CENTRAL ANGLE OF 154 40110"; THENCE NORTHEASTERLY 221.36 FEET ALONG SAID CURVE'TO A NON -TANGENT LINE HAVING A RADIAL BEARING OF S 0 48'10" W, SAID POINT ALSO LYING ON THE WESTERLY LINE OF SAID LOT "H THENCE NORTHERLY ALONG SAID LINE N 00 19'35" E, A DISTANCE OF 715.19 FEET; THENCE SOUTHERLY ALONG THE.EASTERLY LINE OF SAID LOT "H" S 16 42'57" E, A DISTANCE OF 886.00 FEET; THENCE CONTINUING SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOT "H S 39 19'12" E. A DISTANCE OF 650.00 FEET TO THE SOUTHEAST CORNER OF SAID LOT "H"; THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT "H", N 89 51'05" W. A DISTANCE OF 659.24 FEET TO THE POINT OF BEGINNING.