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2002 10 01 RDAc&t,, 4 1wQ" Redevelopment Agency Agendas are available on the City's Web Page @ www.la-quinta.org Redevelopment Agency Agenda CITY COUNCIL CHAMBER 78-495 Calle Tampico La Quinta, California 92253 Regular Meeting Tuesday, October 1, 2002 - 2:00 P.M. Beginning Res. No. RA 2002-17 CALL TO ORDER Roll Call: Board Members: Adolph, Pena, Perkins, Sniff, Chairperson Henderson PUBLIC COMMENT At this time, members of the public may address the Redevelopment Agency on any matter not listed on the agenda. Please complete a "request to speak" form and limit your comments to three minutes. Please watch the timing device on the podium. III. CLOSED SESSION CONFERENCE WITH AGENCY'S REAL PROPERTY NEGOTIATOR, MARK WEISS, PURSUANT TO GOVERNMENT CODE SECTION 54956.8 CONCERNING POTENTIAL TERMS AND CONDITIONS OF ACQUISITION AND/OR DISPOSITION OF REAL PROPERTY LOCATED AT THE SOUTHEAST CORNER OF HIGHWAY 111 AND WASHINGTON STREET (APN's 643-020-017, 018, 023), WASHINGTON SQUARE. PROPERTY OWNER/NEGOTIATOR: DALE FRANK. CONFERENCE WITH AGENCY'S REAL PROPERTY NEGOTIATOR, MARK WEISS, PURSUANT TO GOVERNMENT CODE SECTION 54956.8 CONCERNING POTENTIAL TERMS AND CONDITIONS OF ACQUISITION AND/OR DISPOSITION OF REAL PROPERTY LOCATED ON THE NORTH SIDE OF CALLE TAMPICO, WEST OF DESERT CLUB DRIVE, EMBASSY SUITES (TENTATIVE PARCEL MAP 29909, PARCEL 8)• PROPERTY OWNER/NEGOTIATOR: DANNY BROWN, BISON HOTEL GROUP. NOTE: Time permitting, the Redevelopment Agency Board may conduct Closed Session discussions during the dinner recess. In addition, when the Agency is considering acquisition of property, persons identified as negotiating parties are not invited into the Closed Session Meeting. Cr � RDA Agenda September 17, 2002 RECONVENE AT 3:00 PM IV. PUBLIC COMMENT At this time members of the public may address the Agency Board on items that appear within the Consent Calendar or matters that are not listed on the agenda. Please complete a "request to speak" form and limit your comments to three minutes. When you are called to speak, please come forward and state your name for the record. Please watch the timing device on the podium. For all Agency Business Session matters or Public Hearings on the agenda, a completed "request to speak" form should be filed with the City Clerk prior to the Agency beginning consideration of that item. V. CONFIRMATION OF AGENDA VI. APPROVAL OF MINUTES APPROVAL OF THE MINUTES OF SEPTEMBER 17, 2002. VII. CONSENT CALENDAR Note: Consent Calendar items are considered to be routine in nature and will be approved by one motion. 1. APPROVAL OF DEMAND REGISTER FOR OCTOBER 1, 2002. 2. ACCEPTANCE OF BID FOR ASSESSMENT/SEWER HOOK-UP FEE SUBSIDY PROGRAM - PROJECT 2002-02, TRI-STAR CONSTRUCTION. 3. APPROVAL OF A ONE-YEAR LEASE BY AND BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY AND PELZ GOLF SCHOOL FOR AGENCY -OWNED PROPERTY LOCATED AT 79-999 OLD AVENUE 52. 4. APPROVAL OF CONTRACT CHANGE ORDER NO. 81 AND ACCEPTANCE OF JEFFERSON STREET FINAL IMPROVEMENTS, PHASE I - AVENUE 54 TO HIGHWAY 111, PROJECT NO. 99-05. 5. ACCEPTANCE OF PROJECT NO. 98-19 A & B, VILLAGE COMMERCIAL, PHASE VI COVE IMPROVEMENTS, PROTOTYPICAL STREET IMPROVEMENTS (CALLE ESTADO), ASSESSMENT DISTRICT 2000-1. 6. ACCEPTANCE OF PROJECT NO. 98-19C, WESTWARD HO, ASSESSMENT DISTRICT 2000-1. Vill. BUSINESS SESSION - None RDA Agenda -2- September 17, 2002 IX. CHAIR AND BOARD MEMBERS' ITEMS X. PUBLIC HEARINGS XI. ADJOURNMENT - Adjourn to a regularly scheduled Meeting of the Redevelopment Agency to be held on October 15, 2002, commencing with closed session at 2:00 p.m. and open session at the conclusion of the 3:00 p.m. City Council business session in the City Council Chambers, 78-495 Calle Tampico, CA 92253. DECLARATION OF POSTING I, June S. Greek, Secretary of the La Quinta Redevelopment Agency, do hereby declare that the foregoing agenda for the La Quinta Redevelopment Agency meeting of Tuesday, October 1, 2002, was posted on the outside entry to the Council Chambers, 78-495 Calle Tampico and on the bulletin board at the La Quinta Chamber of Commerce and at Stater Bros. 78-630 Highway 1 1 1, on Friday, September 27, 2002. DATED: September 27, 2002 JU GREEK, CMC Agency Secretary, City of La Quinta, California PUBLIC NOTICES The La Quinta City Council Chamber is handicapped accessible. If special equipment is needed for the hearing impaired, please call the City Clerk's Office at 777-7025, 24-hours in advance of the meeting and accommodations will be made 0( r .r i 7 RDA Agenda -3- September 17, 2002 T44 4 etA Q" COUNCIL/RDA MEETING DATE: OCTOBER 1, 2002 ITEM TITLE: Demand Register Dated October 1, 2002 AGENDA CATEGORY: BUSINESS SESSION CONSENT CALENDAR STUDY SESSION PUBLIC HEARING RECOMMENDATION: It is recommended the Redevelopment Agency Board: Receive and File the Demand Register Dated October 1, 2002 of which $85,000.00 represents Redevelopment Agency Expenditures. PLEASE SEE CONSENT CALENDAR ITEM NUMBER 1 ON CITY COUNCIL AGENDA c&tT 4:NQ" AGENDA CATEGORY: BUSINESS SESSION: COUNCIL/RDA MEETING DATE: October 1, 2002 CONSENT CALENDAR: ITEM TITLE: Acceptance of Bid for Assessment/Sewer Hook -Up Fee Subsidy Program - Project 2002-02, Tri Star Construction RECOMMENDATION: STUDY SESSION: PUBLIC HEARING: Accept the low bid from Tri Star Construction for the hook-up of 20 sewers in the amount of $52,200.00. FISCAL IMPLICATIONS: The Redevelopment Agency Housing Program Account (#405-902-692-000) has a current balance of $150,000.00. The amount remaining in this account would be reduced by $52,200.00 to pay for the hook-ups. BACK R D AND OVERVIEW: Project 2002-02 provides for the hook-up of 20 sewers paid for by the fee subsidy program. Two contractors submitted bids as follows: Alms Underground, in the amount of $52,400.00, and Tri Star Construction, in the amount of $52,200.00. The bid proposal submitted by the low bidder, Tri Star Construction, is included as Attachment No. 1. FINDINGS AND ALTERNATIVE: The alternatives available to the Redevelopment Agency Board include: 1 . Accept the low bid from Tri Star Construction for the hook-up of 20 sewers in the amount of $52,200.00; or 2. Reject all bids and delay construction of Project 2002-02; or 3. Provide staff with alternative direction. A:\agenda3 Respectfully submitted, �f'Ll Tom Hartung, Building Safety Director Approved for submission by: Thomas P. Genovese, Executive Director Redevelopment Agency Attachment: 1. Bid Proposal Submitted by Tri Star Construction 00 A:\agenda3 ATTACHMENT 1 SEWER HOOK-UP BIDDER'S DECLARATION It is understood and agreed that: 1. The undersigned has carefully examined all documents which will form a part of the Contract namely, the Notice Inviting Bids; the Instruction to Bidders; this Proposal; the Bidder's Declaration; the Bid Bond; the Designation of Subcontractors; the Construction Project Reference; the Bidder's Assurance; the Certificate of Non -Discrimination by Contractor; the Affidavit of Non -Collusion by Contractor; the Contract Agreement; the Faithful Performance Bond the Payment Bond; the Contractor's Worker's Compensation Insurance Certificate; Instructions for Signing Bids, Bonds and Contracts; those certain specifications; the General Conditions and the Special Provisions. 2. The undersigned has, by investigation at the site of the work and otherwise, satisfied himself as to the nature and location of the work and fully informed himself as to all conditions and matters which can in any way affect the work or the cost thereof. No claim for allowance --time or money --will be allowed as to such matters. 3. The undersigned fully understands the Scope of Work and has checked carefully all words and figures inserted in this Proposal and he further understands that the City will not be responsible for any errors or omissions in the preparation of the Proposal. 4. The undersigned agrees and acknowledges that he is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for worker's compensation or to undertake self- insurance in accordance with the provisions of that Code, and that the undersigned will comply with such provisions before commencing the performance of the Contract if it is awarded to the undersigned. The undersigned will begin work after award of Contract and a Notice to Proceed has been given as herein specified, and provided all requirements in regard to bonds and insurance have been satisfied and will complete said Work within the time specified. The undersigned will execute the Contract and furnish the required statutory bonds and certificates of insurance within the period of time specified in the Contract Documents. r 004 5. The undersigned will accept an award and enter into a Contract for all Work scheduled herein on which he puts in a bid. The award for such work is to be entirely at the discretion of the City after evaluation of the bids as submitted. The undersigned agrees that the City shall recover or retain as liquidated damages an amount equal to the difference between the low bid and amount of the bid of the bidder with whom the City enters into a Contract, and the surplus, if any shall be returned to the lowest bidder in accordance with the provisions of Section 20174 of the California Public Contracts Code in the event of his failure to execute a Contract and furnish bonds and insurance therefor within the time provided. 6. This bid will not be withdrawn within a period of thirty (30) days after the date of its proper opening by the City. _ Respectfccully-- submitted, ���A2 � 0�15� U.C.�rtr� 121 �..�T►4{� l � >;��ar,TiDt� ntractor's Business Name Contractor Title Business Address: Street BY Title City State Zip Contractor's License No. and Classification --7(pc7i8 o Z Business Phone Number Dat 7 4aZm e Title -,Q- (DW Ncrmf=� -r Residence: Street Da u 0 City State Zip Residence Phone No. .0 0 .' P-3 BIDDING SCHEDULE BUILDING SEWER HOOK-UP AND ABANDON EXISTING FACILITIES PROPERTY DELETED BY RSG ON 9/25/02 1. L HOUSE NO. 51-400 Calle Guatemala Street Address Sewer Hook-u $ 1700 , 0,0 n xisting Facilities L.S. U __ TOTAL 13. 2. PARCEL HOUSE NO. 51-120 Ave. Carranza Street Address Sewer Hook-up L.S. $ 1) D6 Abandon Existing Facilities L.S. 6 C) TOTAL „'S W. ()0 3. PARCEL HOUSE NO. Street Address Sewer Hook-up L.S. $ l►�l©U, DU Abandon Existing Facilities L.S. TOTAL �, r. DU 4. PARCEL HOUSE NO. Street Address Sewer Hook-up L.S. $ if 7)1), Abandon Existing Facilities L.S. DD TOTAL Y.DNX5�6aw 5. PARCEL HOUSE NO. 51-885 Ave. Martinez Street Address Sewer Hook-up L.S. $ /, LIDD- 00 Abandon Existing Facilities L.S. Off. co TOTAL Te)Ole. co P-13A R 7 a 10 11. PARCEL HOUSE NO. 52-641 Ave Mendoza Street Address Sewer Hook-up L.S. Abandon Existing Facilities L.S. 6D _ TOTAL oo PARCEL HOUSE NO. 52-031 Ave Velasoo__ Street Address Sewer Hook-up L.S. $ 1 LIDO, 06 _ Abandon Existing Facilities L.S. 1,170r. ._ TOTAL Z 6 0D. � PARCEL HOUSE NO. 52-685 Ave. Vallejo Street Address Sewer Hook-up L.S. $ qCO0 Abandon Existing Facilities L.S. 1 100. 00 TOTAL ze) U 0- PARCEL HOUSE NO. 52-145 Ave Martinez Street Address Sewer Hook-up L.S. $ i1766- oy Abandon Existing Facilities L.S. I; LSD. °() TOTAL PARCEL HOUSE NO. 77-885 Calle Ensenada Street Address Sewer Hook-up L.S. $ q66- Abandon Existing Facilities L.S. / 0 6, t�0 TOTAL C�q, 6 oa op PARCEL HOUSE NO. 52-390 Ave Juarez Street Address Sewer Hook-up Abandon Existing Facilities L.S. $ C/jq a. U() L.S. . D TOTAL D .Ov 017 P-13B 12. PARCEL HOUSE NO. Street Address Sewer Hook-up L.S. $ 11, -7DD. Dv Abandon Existing Facilities L.S. TOTAL 13. PARCEL HOUSE NO. 52-175 Ave Ramirez Street Address 14 15 16. 17 Sewer Hook-up L.S. $ __/4Z&t),V0 Abandon Existing Facilities L.S. r, 106. W TOTAL 9,500,00 PARCEL HOUSE NO. 52-795 Ave Mendoza --- Street Address Sewer Hook-up L.S. $ l,q(;O,00 Abandon Existing Facilities L.S. f , / 00 ,W TOTAL O - PARCEL HOUSE NO. 53-185 Ave Mendoza Street Address Sewer Hook-up L.S. $ IL466- 60 Abandon Existing Facilities L.S. TOTAL as . Coo PARCEL HOUSE NO. 53-685 Ave Alvarado Street Address Sewer Hook-up L.S. $ r HMO. 00 Abandon Existing Facilities L.S. I 06. TOTAL off, _56_b 0 PARCEL HOUSE NO. 53-935 Ave Villa _ Street Address Sewer Hook-up Abandon Existing Facilities L.S. $ 4j66. 00 L.S. a "UD TOTAL ' vG P-13C 18. PARCEL HOUSE NO. 19 20 21 Street Address Sewer Hook-up L.S. $ q()5. Old _ Abandon Existing Facilities L.S. TOTAL ,00 PARCEL HOUSE NO. 53-615 Ave Martinez Street Address Sewer Hook-up L.S. $ 1 UVD•0� Abandon Existing Facilities L.S. TOTAL 5 LO PARCEL HOUSE NO. 54-765 Ave Ramirez Street Address Sewer Hook-up L.S. $ l , L- 6 o. C6 Abandon Existing Facilities L.S. ( / 06.0D TOTAL 66b. OCR PARCEL HOUSE NO. 54-280 Ave Vallejo _ Street Address Sewer Hook-up Abandon Existing Facilities L.S. L.S. TOTAL GRAND TOTAL $ I , 4/O(, .00 1, 0o. m _ o?� 00 v09 P-13D T4'yl 4 aCP Q" COUNCIL/RDA MEETING DATE: October 1, 2002 ITEM TITLE: Approval of a One -Year Lease by and Between the La Quinta Redevelopment Agency and Pelz Golf School for Agency - Owned Property Located at 79-999 Old Avenue 52 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve a lease agreement by and between the La Quinta Redevelopment Agency and Independent Golf Research, DBA the Dave Pelz Scoring Game School, for certain real property located at 79-999 Old Avenue 52, and authorize the Executive Director to execute the documents. FISCAL IMPLICATIONS: During the 8-month term of the lease agreement, the Agency will receive approximately $28,000 in rental income. The lease is structured so that Dave Pelz Scoring Game School would be responsible for facility operational expenses (building and landscape maintenance, and minor building repairs). The Agency would be responsible for major building and facility repairs. Major repairs could cost up to $5,000 over the term of the lease and may entail replacing an air conditioning compressor, repairing the fence that adjoins the entry drive, and pool equipment repairs. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The Dave Pelz Scoring Game School has been operating a short course golf academy at this location since 1994, providing instruction on the short golf game. In addition to the La Quinta facility, they operate schools in four other locations serving both professional and amateur golfers. Their La Quinta operation offers classes from November through May. When the Agency acquired The Ranch, the Pelz School was completing their 2001-2002 season. Staff initiated discussions with the Pelz School regarding their interest in continuing their occupancy and instituting a lease. The attached lease provides the Pelz School exclusive use of the Ahmanson Ranch House, an adjoining modular office, and the golf greens for an 8-month term. The lease rate is $4,000 per month with payments commencing when they occupy the facilities on November 1, 2002, and continuing through May 31, 2003, when they will be vacating the facilities. The lease provides that the Pelz School would be responsible for facility operations and maintenance (building, greens and pool maintenance, and minor facility repairs), with the Agency responsible for major facility repairs (HVAC systems, water well maintenance and operations, and structural improvements). Staff recommends that the Agency enter into the lease with the Pelz School because: • the Pelz School attracts numerous visitors to La Quinta who attend their classes; per the Pelz School and confirmed by KSL Recreation, during their 7- month school year they generate 32 room nights per week at the La Quinta Resort and Club, which generates additional business in the community; • the Agency does not have any immediate use for these facilities; • the Agency is embarking on a master planning process that will determine the disposition of this property during the next year; and • the Pelz School is a viable tenant that desires to remain at this location. Since the lease is for less than a year, staff proposes that RSG, the Agency's real estate and redevelopment consultant, serve as the Agency's contact for all day-to- day property management matters. RSG previously performed this service when the Agency acquired the 50 single-family residences in the Cove that are part of the Rental Housing Program. They managed these units for a 14-month period until a local residential property management firm was retained. During this period, staff did not receive any service or facility maintenance complaints from the tenants. FINDINGS AND ALTERNATIVES: The alternatives available to the Agency Board include: 0 i 1.2 1 . Approve the lease agreement by and between the La Quinta Redevelopment Agency and Independent Golf Research, DBA the Dave Pelz Scoring Game School, for certain real property located at 79-999 Old Avenue 52, and authorize the appropriate parties to execute documents; or 2. Do not approve the lease agreement by and between the La Quinta Redevelopment Agency and Independent Golf Research, DBA the Dave Pelz Scoring Game School, and do not authorize the appropriate parties to execute documents; or 3. Provide staff with alternative direction. Respectfully submitted, Mark Weiss Assistant Executive Director Approved for submission by: Thomas P. Genovese, Executive Director Attachment: 1. Lease Agreement P , 1 ATTACHMENT 1 LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease") is made effective the day of 2002, by and between THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Landlord") and INDEPENDENT GOLF RESEARCH, a Texas corporation, DBA THE DAVE PELZ SCORING GAME SCHOOL ("Tenant"). RECITALS A. Landlord is the owner of that certain real property located in the City of La Quinta, County of Riverside, State of California, more commonly known as 79-999 Old Avenue 52, located in the city of La Quinta, County of Riverside, State of California, and more particularly described on Exhibit "A", attached hereto and incorporated herein (the "Land"); and (ii) certain improvements located on the Land consisting of two (2) buildings, and surrounding ancillary facilities containing approximately square feet of space, commonly known as the "Ahmanson Ranch House", and appurtenances thereto (collectively, the "Improvements"). The Land and the Improvements are hereinafter referred to together as the "Leased Premises", and are more particularly depicted on Exhibit `B", attached hereto and incorporated herein. B. Tenant is in the business of the development, implementation, operation, instruction, management, and supervision of "short game" golf, and a variety of clinics, lessons, mini -schools, and outings in connection therewith (collectively, the "Programs"). Tenant desires to provide the Programs on the Leased Premises pursuant to the terms and conditions set forth herein. The Programs shall be known as the "Dave Pelz Short Game SchoolTM." C. Landlord desires to lease to Tenant and Tenant desires to lease from Landlord the Leased Premises on the terms and conditions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements set forth herein, Landlord and Tenant agree as follows: ARTICLE I Leased Premises and Use of Name/Logo 1.1 Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Leased Premises, together with the non-exclusive right to use in common with others the parking areas, driveways and walkways located on the Land, upon the terms and conditions set forth in this Lease. Tenant hereby covenants and warrants that Tenant shall comply with all applicable laws, rules and regulations, including, without limitation, Landlord's and the City of La Quinta's rules and regulations, in connection with its operations on the Land. 1.2 Conditions of Leased Premises; "AS -IS" Provision. Tenant acknowledges that it has had an adequate opportunity to inspect the Leased Premises and to investigate its physical 619/015610-0048 +��) 304489.07 PM02 characteristics and conditions, and hereby waives any and all objections to the physical characteristics and conditions of the Leased Premises. Tenant acknowledges that Landlord has not made any representations, warranties or agreements to or with Tenant as to any matters concerning the Leased Premises, the present use thereof, or the suitability of Tenant's intended use of the Leased Premises. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, existence of hazardous waste or similar substances, purposes to which the Leased Premises is suited, drainage or access to public roads. Tenant further acknowledges and agrees that the Leased Premises is being leased and accepted by Tenant in its present condition, "AS -IS", and that no patent or latent physical condition of the Leased Premises, whether or not known or discovered, shall affect the rights of either party hereto. Tenant has investigated and has knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Leased Premises may be subject, and is leasing the Leased Premises on the basis of its review and determination of the application and effect of such laws and regulations. Tenant has neither received nor relied upon any representations concerning such laws and regulations made by Landlord or any person acting under or on behalf of Landlord. Any agreements, warranties or representations not expressly contained in this Lease shall in no way bind Landlord. 1.3 Property Facilities. Landlord hereby grants to Tenant the exclusive right to use the Leased Premises, specifically the main ranch house, use of the office trailer (as further described herein), and those facilities specifically created for the Programs (as may be altered and improved as provided below) for purposes of conducting its Programs during the term of this Lease. 1.4 Use of Name/Logo. Tenant hereby authorizes and grants Landlord a license to use its name, trademarks, service marks and logo in Landlord's advertising, public relations and other promotions that relate to the Land or the Leased Premises. Landlord understands and agrees that such authorization and license is non-exclusive and shall terminate upon the expiration or earlier termination of this Agreement. Any use, advertisement or promotional material or information by Landlord using Tenant's name, trademark, service mark and logo, or any of them, must be pre -approved in writing by Tenant, which approval shall not be unreasonably withheld, conditioned or delayed. In no event shall Tenant use the name, trademarks, service marks, or logo of PGA West in connection with Tenant's Programs. Additionally, Tenant shall not use the name, trademarks, service marks, or logo of the La Quinta Resort & Club in connection with Tenant's Programs unless Tenant has obtained the prior written consent of the La Quinta Resort & Club and has delivered evidence of such consent to Landlord. Tenant shall indemnify and hold harmless Landlord from and against any and all losses, costs, expenses (including attorneys' fees), claims, damages and liens, arising or related to Tenant's use of any name, trademarks, service marks, or logos in violation of this Section 1.4. 1.5 "Post -Acquisition" Status of Tenant. Tenant acknowledges that it is a post - acquisition tenant, and that further acknowledges that the Landlord plans to redevelop the subject property. Tenant hereby waives, relinquishes, and discharges any and all rights or claims for relocation assistance or related benefits or loss of goodwill under any applicable law, including, but not limited to California Government Code Section 7260 et seq. and the State Relocation i r �1 006 619/015610-0048 _ 304489.07 PM02 -2 Assistance and Real Property Acquisition, 25 C.F.R. 6000 et seq., or the comparable federal relocation laws and regulations, or for inverse condemnation. ARTICLE Il Lease Term 2.1 Term. The Term of this Lease shall commence October 1, 2002 and shall end May 31, 2003 (the "Term"). ARTICLE III Rent and Operating Expenses 3.1 Rent. Beginning November 1, 2002 and continuing throughout the Term, Tenant shall pay base rent in the amount of FOUR THOUSAND DOLLARS ($4,000.00) ("Net Rent") to Landlord at Landlord's address as provided by Section 15.7. Net Rent shall be due and payable in advance on or before first (1") day of each calendar month of the Term, without notice or demand from Landlord. Net Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. 3.2 Late Charges. Tenant hereby acknowledges that late payment by Tenant of Net Rent will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by any lender. Accordingly, if any Net Rent shall not be received by Landlord within fifteen (15) days after such amount shall be due, then, without any requirement for notice by Landlord, Tenant shall pay to Landlord a one-time late charge equal to ten percent (10%) of each such overdue amount or One Hundred Dollars ($100.00), whichever is greater. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of such late payment. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default or breach with respect to such overdue amount, nor prevent the exercise of any other rights or remedies granted hereunder. In the event a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of Net Rent, then notwithstanding any other provision of this Lease to the contrary, Net Rent (which shall be deemed to equal the highest amount of Net Rent received by Landlord during the Term as of such date), shall, at Landlord's option, become due and payable quarterly in advance, with additional payment of rent by Tenant or reimbursement of rent received in advance by Landlord, as applicable, on a monthly basis for the quarter in which advance payment was made. 3.3 Operating Expenses. Tenant shall be responsible for payment of any and all costs, charges and expenses for all utilities and related services provided to or for the Leased Premises, whether billed directly or indirectly to Tenant or Landlord including, but not limited to, as applicable, telephone, water, gas, cable television, landscaping, cleaning expenses, solid waste disposal, pest control and all costs associated with the cost of maintaining the short course greens (collectively, the "Operating Expenses"). In addition to the indemnity provided to opt 1 619/015610-0048 007 304489.07 PM02 _3 Landlord in Section 14.1 herein, Tenant shall indemnify and hold Landlord harmless from and against any loss, cost, charge, expense or damage with respect thereto. 3.4 [Intentionally Deleted.] 3.5 Personal Property. Taxes; Possessory Interest Tax. During the Term, Tenant shall pay all taxes assessed against and levied upon fixtures, furnishings, equipment, and all other personal property of Tenant contained on the Land or in the Leased Premises prior to delinquency, and when possible Tenant shall cause these fixtures, furnishings, equipment, and other personal property to be assessed and billed separately from the real property of Landlord. If any of Tenant's fixtures, furnishings, equipment, and other personal property is assessed and taxed with Landlord's real property, Tenant shall pay to Landlord Tenant's share of the taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of the taxes applicable to Tenant's property. Furthermore, in accordance with California Revenue & Taxation Code § 107.6, Tenant hereby acknowledges that the possessory interest granted herein may be a taxable interest and, Tenant's obligations with respect to the payment of any and all costs associated with Tenant's use of the Leased Premises shall include, without limitation, the obligation to pay any such possessory interest tax. 3.6 Landlord Contact Person. During the Term, Tenant shall direct all questions, concerns, and correspondence regarding repairs or other issues relating to this Lease to Landlord's representative, Frank J. Spevacek, at the address set forth in Section 15.7 herein. ARTICLE IV Occupancy 4.1 Quiet Enjoin ent. Provided that no default or condition described in Section 13.1 has occurred and is continuing, and subject to performance by Tenant of all of the covenants and provisions of this Lease to be performed by Tenant, Tenant shall have during the Term peaceful and quiet use and possession of the Leased Premises without hindrance on the part of Landlord. 4.2 Use of Leased Premises. Tenant may use the Leased Premises for the purposes set forth herein and for no other purpose unless approved in writing by Landlord, which approval may be granted or denied in Landlord's sole and absolute discretion. 4.3 Compliance with Law. Tenant shall not at any time use or occupy the Leased Premises, or permit any act or omission in or about the Leased Premises in violation of any law, statute, ordinance or any governmental rule, regulation or order (collectively, "Law") and Tenant shall, upon written notice from Landlord, discontinue any use of the Leased Premises or the Land which is a violation of Law. At all times during the Term, at Tenant's own expense, Tenant shall conform to and comply with the Law and any requirements of applicable insurance policies now or hereafter in force, affecting the use or occupancy of all or any part of the Leased Premises or the Land. Without limiting the foregoing, 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, national origin, or ancestry in the use, occupancy, tenure, or enjoyment of the Leased Premises, nor shall Tenant, or any person claiming under or through Tenant, establish or 619/015610-0048 _ 008 304489.07 PM02 _4 permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of any persons in the Leased Premises. Notwithstanding the foregoing, or any provision set forth herein to the contrary, to the extent required by law, Landlord shall bear all expenses relating to any alterations to the Leased Premises required by the Americans With Disabilities Act (42 U.S.C. § 12 10 1, et seq.). 4.4 Hazardous Materials. As used herein, the term "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government, including, without limitation, (i) any material or substance which is defined or listed as a "hazardous waste, extremely hazardous waste, restricted hazardous waste," "hazardous substance" or "hazardous material" under any federal, state or local law, statute, ordinance or any governmental rule, regulation or order governing or in any way relating to the release, use, generation, handling, leakage, dumping, discharge or disposal of any of the above (collectively, "Hazardous Material Laws") (ii) petroleum or any petroleum derivative, (iii) any flammable explosive or radioactive material, (iv) any polychlorinated biphenyl and (v) asbestos or any asbestos containing material or derivative; provided, however, notwithstanding the foregoing, the term "Hazardous Materials" shall not include materials of a nature and in an amount ordinary and customary for janitorial and maintenance activities on the Leased Premises. Tenant hereby agrees that (1) Tenant and each of its affiliates, assignees, subtenants, and their respective agents, servants, employees, representatives and contractors shall not bring onto the Leased Premises or the Land any Hazardous Material, (ii) Tenant shall immediately notify Landlord in writing in the event Tenant becomes aware of or suspects that there has been any release of any Hazardous Material in, on or about the Leased Premises or the Land or that any person has stored or otherwise brought onto the Leased Premises or the Land or any portion thereof any Hazardous Material. Tenant agrees to indemnify, defend (with counsel reasonably approved by Landlord), protect and hold Landlord and each of its affiliates, and each and every officer, director, employee, attorney, agent and representative of Landlord (collectively, the "Landlord Parties") harmless from and against any and all claims, actions, administrative proceedings (including informal proceedings), judgments, damages to person or property, punitive damages, penalties, fines, costs, liabilities, interest or losses, including reasonable attorneys' fees and expenses, consultant fees, and expert fees, together with all other costs and expenses of any kind or nature (hereinafter collectively "Claims") resulting directly or indirectly from or in connection with the presence, handling, storage, release or discharge of any Hazardous Material that (i) first occurred after Landlord's delivery of possession of the Leased Premises to Tenant and prior to expiration or sooner termination of the Lease term; or (ii) was caused or contributed to by Tenant, its affiliates and/or their respective agents, servants, employees, representatives and/or contractors. Each of the covenants and agreements of the parties set forth in this Section 4.4 shall survive the expiration or earlier termination of this Lease. 4.5 Conduct on Leased Premises. Tenant shall not do, or permit anything to be done, in or on the Leased Premises, which in any way will (a) increase the rate of fire insurance on the Leased Premises; (b) invalidate or conflict with the fire insurance policies on the Leased Premises or fixtures or on personal property kept therein; (c) obstruct or interfere with the rights of Landlord or Landlord's other tenants on the Land; (d) subject Landlord to any liability for injury to persons or damage to property; or (e) interfere with the good order of the Leased Premises or the Land. a' 619/015610.0048 _ 009 304489.07 PM02 _5 4.6 Leased Premises - Loss, Damage. Landlord shall not be liable under this Lease to Tenant for injuries to person or damage to property occurring an the Land and the Leased Premises or to any persons thereon, including, without limitation: (a) a loss of property by theft or burglary, including property placed in the custody of Landlord's employees; (b) damage or injury to person or property on the Leased Premises from the use of any utility on the Leased Premises; (c) any damage or injury caused by action of the natural elements; or (d) damage or injury resulting from (i) the conduct of Tenant, Tenant's contractors, licensees or invitees, whether negligent or otherwise, or (ii) any other act, event or occurrence in or about the Leased Premises other than the grossly negligent or intentional acts of Landlord or Landlord's employees, contractors, licensees or invitees. Tenant shall not make any claim against Landlord for any loss or damage described in this Section. ARTICLE V Transfers 5.1 Assignment and Subletting. Tenant shall not have the right to sublet the Leased Premises, or any portion thereof, or to assign or mortgage Tenant's interest in this Lease, or any portion thereof, without the prior written consent of Landlord, which consent may be withheld in Landlord's sole and absolute discretion. In the case of any such subletting or assignment approved by Landlord, Tenant shall remain fully obligated to Landlord for the performance of all terms and conditions of this Lease. Notwithstanding the foregoing, Landlord may, without Tenant's consent, assign this lease to any of its affiliates, successors or assigns. ARTICLE VI Parkin 6.1 Parkin . Tenant's lease of the Leased Premises includes the non-exclusive right to use, in common with others, the adjacent automobile parking areas, driveways, access roads and footways. ARTICLE VII Maintenance and Alterations 7.1 Maintenance by Tenant. Tenant, at its expense, will be responsible for the routine maintenance and upkeep of the Leased Premises, including but not limited to, maintenance of indoor sprinklers, plumbing, HVAC equipment and other appliances, electrical, lighting facilities (including the replacement of light bulbs), boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, skylights, and other minor building repairs. In addition, Tenant shall paint the exterior or interior surfaces of exterior walls, when necessary. Tenant shall keep the Leased Premises in good and clean order and reasonable condition, fit for its intended use. Tenant will not do, and will take reasonable steps to prevent Tenant's employees, contractors, invitees and guests from doing, any act or things which might in any manner impair the value or usefulness of the Leased Premises or any part thereof, or commit or permit any waste of the Leased Premises or any part thereof. t I 619/015610-0048 �• 304489.07 PM02 -6 7.2 Maintenance by Landlord. Landlord agrees to make all major repairs to the Leased Premises, including maintenance of the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, fire alarms and smoke detection systems not located on or in the Leased Premises, fire hydrants, parking lots, walkways, replacement of HVAC and utility systems, repair of the well and septic system, and other major building repairs beyond normal maintenance, to be determined by Landlord in its reasonable discretion. Notwithstanding the foregoing, any major repair that is necessitated by the negligent or intentional act(s) of Tenant, its affiliates, invitees, guests, agents, employees, or contractors shall be repaired or maintained by Tenant or its designee at Tenant's sole cost and expense. If Tenant does not commence and complete such repairs within a reasonable time frame, Landlord may commence, continue, or complete such repairs at Tenant's cost and expense, payable by Tenant upon demand therefor by Landlord. 7.3 Alterations by Tenant. Tenant may not make any additions, alterations or changes to the Leased Premises without the prior written consent of Landlord, which consent may be withheld in Landlord's sole and absolute discretion. ARTICLE VIiI Surrender of Leased Premises 8.1 Surrender. Upon expiration of the Term, or any earlier termination of this Lease, Tenant shall surrender to Landlord the Leased Premises, including all alterations, improvements and other additions made by Landlord or Tenant, in good order, condition, and repair, reasonable wear and tear excepted. Notwithstanding the foregoing, upon Landlord's written request therefor, which request will itemize the articles to be removed, Tenant shall at Tenant's expense promptly remove or cause to be removed from the Leased Premises or the Land all debris, along with only those articles of furniture, equipment, and trade fixtures, free-standing cabinet work and other articles of any other persons claiming under Tenant, itemized on Landlord's written request for removal, subject to the provisions of Section 8.2 below. Tenant shall repair all damage to the Leased Premises or the Land resulting from such removal, which repair shall include the patching and filling of holes and repair of structural damage. In the event that Tenant shall fail to comply with the provisions of this Section 8.1, Landlord may make such repairs and the cost thereof shall be payable by Tenant upon demand. If requested by Landlord, Tenant shall execute, acknowledge and deliver to Landlord an instrument in writing releasing and quitclaiming to Landlord all right, title and interest of Tenant in and to the Leased Premises by reason of this Lease or otherwise. 8.2 Affixed Property. All fixtures, equipment, alterations, additions, improvements and/or appurtenances attached to or built into the Leased Premises prior to or during the term hereof, whether by Landlord at its expense or at the expense of Tenant or both, shall be and remain part of the Leased Premises and shall belong to Landlord unless otherwise expressly provided for in this Lease or unless such removal is required and designated in writing by Landlord pursuant to the provisions of Section 8.1 hereof. Such fixtures, equipment, alterations, additions, improvements and/or appurtenances shall include, without limitation, floor coverings, drapes, paneling, molding, built-in cabinets, doors, vaults, (exclusive of vault doors), plumbing, electrical communications and lighting systems, silencing equipment, all fixtures and outlets for 619/015610-0048 304489.07 PM02 -7 the systems mentioned above and for all telephone, radio, telegraph and television purposes, and any special flooring or ceiling installations. 8.3 Hold -Over. Tenant shall have no right to occupy the Leased Premises or any portion thereof after expiration of this Lease or Tenant's right to possession of the Leased Premises. In the event Tenant or any party claiming by, through or under Tenant, retains possession of the Leased Premises after the expiration or earlier termination of this Lease, such possession shall constitute and be construed as a tenancy at will only, subject, however, to all of the terms, provisions, covenants and agreements of Tenant hereunder. Tenant or any such party shall pay Landlord, as rent for the entire period of any hold -over tenancy, One Hundred Dollars ($100) per day. In the event of such hold -over, Landlord may immediately exercise all remedies available to Landlord at law or in equity to recover possession of the Leased Premises and for damages. Tenant shall be liable to Landlord for any loss or damage Landlord may sustain by reason of Tenant's failure to surrender possession of the Leased Premises immediately upon the expiration or termination of this Lease. If Tenant shall fail to surrender possession of the Leased Premises immediately upon the expiration or earlier termination of this Lease, Tenant hereby agrees that all the obligations of Tenant and all rights of Landlord applicable during the term of this Lease shall be equally applicable during such period of subsequent occupancy, whether or not a tenancy shall have been created as aforesaid. ARTICLE IX Liens 9.1 Lien. Tenant warrants that no person or entity furnishing any improvement, fixture, equipment or facilities in connection with any improvement or construction within or on the Leased Premises shall have any right to a lien upon the Leased Premises or the Land by virtue of any security interest in such improvement, fixture, equipment or facilities. Tenant shall promptly cause any claim, stop notice, lis pendens, lien or claim of lien asserted against Landlord or the Leased Premises or the Land by reason of the furnishing of any improvement, fixture, equipment or facilities in connection with any improvement or construction within or on the Leased Premises or the Land, or any activity of Tenant, to be promptly discharged or paid. Tenant shall defend, indemnify and hold harmless Landlord from and against any such claim, stop notice, lis pendens, lien or claim of lien. ARTICLE X Insurance 10.1 Tenant's Insurance. (a) Types. Tenant, at no cost and expense to Landlord, shall procure and keep in full force and effect during the Term or case to be procured and kept in full force and effect for the mutual benefit of Landlord and Tenant, 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 Leased Premises in the Southern California area: i^ 619/015610-0048 _ 304489.07 PM02 _g (i) comprehensive general liability insurance with respect to the Leased Premises and the operations of or on behalf of Tenant or its agents, officers, directors, and employees in, on or about the Leased 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 Landlord 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 Landlord and its officers, employees, and agents shall be additional insureds 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; (ill) with respect to the improvements, fixtures, furnishings, equipment and other items of personal property location on or in the Leased Premises, insurance against fire, peril of flood, extended coverage, vandalism and malicious mischief, and such other additional perils, hazards and risk as now 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. Landlord 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 Tenant 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 Tenant hereunder may be furnished by Tenant 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 Landlord prior to the date Tenant is given the right of possession of the Leased Premises or as Landlord may otherwise require, and upon renewals, not less than thirty (30) days prior to the expiration of such coverage. Landlord may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Tenant hereunder. In no event shall the limits of any policy by considered as limiting the liability of Tenant under this Lease. (c) Specific Provisions in Policy. Each policy evidencing insurance required to be carried by Tenant 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 Landlord thirty (30) days prior written notice; and (ii) a waiver by the Tenant's insurer of any right to subrogation against Landlord, 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 Landlord, its agents, employees or representatives. K 013 619/015610-0048 _ 304489.07 PM02 -9 (d) Landlord's Substitute Perforniance. In the event that Tenant fails to procure, maintain and/or pay for at the times and for the durations specified in this Section, any insurance required by this Section, or fails to carry insurance required by law or governmental. regulation, Landlord may (but without obligation to do so) at any time or from time to time, after thirty (30) days written notice to Tenant, procure such insurance and pay the premiums therefor, in which event Tenant shall repay Landlord all sums so paid by Landlord together with interest thereon as provided elsewhere herein, within fifteen (15) days following Landlord's written demand to Tenant for such payment. ARTICLE XI Eminent Domain 11.1 Takin . If by any lawful authority through condemnation or under the power of eminent domain: (a) the whole of the Leased Premises shall be taken; or (b) less than the entire Leased Premises shall be taken, but the remainder of the Leased Premises, are not, in Tenant's sole judgment, fit for Tenant to carry on its business therein, then in any such event, Tenant may terminate this Lease, effective as of the date of such taking, and the Rent and other sums paid or payable hereunder shall be prorated as of the date of such termination. 11.2 Damages. All damages awarded for any such taking under the power of eminent domain shall be paid to Landlord, except damages, if any, specifically allocated by the condemning authority, for fixtures and equipment of Tenant used in operation of the Leased Premises. ARTICLE XII Casualty 1.2.1 Casualty to Leased Premises. (a) Definitions. (i) "Leased Premises Partial Damage" shall mean damage or destruction to the Leased Premises, the repair of which will cost $5,000.00 or less, as determined by Landlord. (ii) "Leased Premises Total Destruction" shall mean damage or destruction to the Leased Premises, the repair of which will cost more than $5,000.00 as reasonably determined by Landlord. (iii) "Insured Loss" shall mean damage or destruction to the Leased Premises where full insurance proceeds are paid to Landlord. (b) Partial Damage. If a Leased Premises Partial Damage occurs, then Landlord shall repair such damage as soon as reasonable possibly and this Lease shall continue in full force and effect. Tenant shall pay any deductibles payable in connection with such Loss. 014 619/015610-0048 _ 10- 304489.07 PM02 (c) Total Destruction -Insured Loss. If a Leased Premises Total Destruction that is an Insured Loss occurs, either party may cancel this Lease by delivery of a Notice to the other party within sixty (60) days of the occurrence of such event, effective as of the date of such Notice. If neither party cancels this Lease, then such Total Destruction shall be deemed a Leased Premises Partial Damage and the repair of the Leased Premises shall be governed by the terms of Paragraph 12.1(b) above. (d) Total Destruction -Uninsured Loss. If a Leased Premises Total Destruction that is not an Insured Loss occurs, either party may cancel this Lease by delivery of a Notice to the other party within sixty (60) days of the occurrence of such event, effective as of the date of such Notice. If neither party cancels this Lease, then Landlord shall commence to repair such damage as soon as reasonably possible thereafter at Landlord's expense, in which event this Lease shall continue in full force and effect. In the event Landlord elects to give Notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after the receipt of such Notice to give written notice to Landlord of Tenant's commitment to pay Or the repair of such damage totally at Tenant's expense and without reimbursement from Landlord. Tenant shall provide Landlord with the required funds or satisfactory assurance thereof within thirty (30) days following Tenant's said commitment. In such event this Lease shall continue in frill force and effect, and Landlord shall proceed to make such repairs as soon as reasonably possible. If Tenant does not give such Notice and provide the funds or assurance thereof within the times specified above, this Lease shall tenninate as of the date specified in Landlord's Notice of termination. 12.2 Abatement. (a) In the event of damage where this Lease is not terminated, whether or not Landlord or Tenant repairs or restores the Leased Premises, the Rent and other charges, if any, payable by Tenant hereunder shall be abated in proportion to the degree to which Tenant's use of the Leased Premises is impaired for the period during which such damage, its repair or the restoration continues. Except for abatement of Rent and other charges, if any, as aforesaid, all other obligations of Tenant hereunder shall be performed by Tenant with respect to the undamaged portions of the Leased Premises. Tenant shall have no claim against Landlord for any damage suffered by reason of any such repair or restoration, except for claims arising from a default by Landlord in the performance of its. repair and restoration obligations. (b) If Landlord shall be obligated to or elects to repair or restore the Leased Premises under the provisions of Section 12.1 and shall not commence the repair or restoration of the Leased Premises within forty-five (45) days after such obligation shall accrue, or the repair and restoration work is not completed within ninety (90) days of the date of the casualty, Tenant may, at any time prior to the commencement of such repair or restoration, as the case may be, give Notice to Landlord and to any lenders of which Tenant has actual notice of Tenant's election to terminate this Lease, effective as of the date of such Notice. "Commencement" as used in this Paragraph shall mean the beginning of the actual construction work on the Leased Premises. 12.3 Waiver of Statutory Rights. Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of the Leased Premises _with 619/015610-0048 -1 1- 015 304489.07 PM02 respect to the termination of this Lease and hereby waive the provisions of any present or future statute (including without limitation Sections 1931,1932 and 1933 of the California Civil Code and any successor statutes) to the extent inconsistent herewith. ARTICLE XIII Defaults and Remedies 13.1 Events of Default. An event of default (an "Event of Default") shall occur under this Lease if: (a) Tenant shall fail to perform any of the terms, conditions or covenants of this Lease to be observed or performed by Tenant and such failure shall continue for more than thirty (30) days after Landlord gives Tenant Notice thereof, unless such default is of a nature that it cannot practically be cured within such thirty (30) day period but can be cured within a reasonable time but in no event later than ninety (90) days, and Tenant is proceeding with due diligence to cure such default; (b) the abandonment of the Leased Premises; or the vacating of the Leased Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Section 10.1 herein is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism; or (c) the occurrence of any of the following events: (a) the making of any general assignment for the benefit of creditors; (b) becoming a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days; (c) the appointment of a trustee or receive to take possession of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or (d) the attachment, execution, or other judicial seizure of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this Section 13.1(c) is contrary to any applicable law, such provision shall be of no force or effect, and not effect the validity of the remaining provisions. Upon the occurrence of any of the foregoing, Landlord may, without limiting Landlord in the exercise of any other right or remedy Landlord may have in law or equity or account of such default, including without limitation, those remedies afforded Landlord pursuant to California Civil Code Section 1951.4, and without any further demand or notice, Landlord may exercise any of the remedies set forth in Section 13.2. 13.2 Remedies. Upon the occurrence of an Event of Default, then at Landlord's option and without limiting Landlord in the exercise of any other right or remedy Landlord may have in law or equity on account of such default, including without limitation, those remedies afforded Landlord pursuant to California Civil Code Section 1951.4, and without any further demand or Notice, Landlord may exercise either of the following remedies: 016 619/015610-0048 -12- 304489.07 PM02 (a) Re-enter the Leased Premises with process of law, take possession thereof and of all improvements, additions, alterations, equipment and fixtures thereon, and eject all parties in possession thereof Landlord may, without terminating this Lease, relet the Leased Premises or any part thereof for the accounts of Landlord or Tenant, receive and collect the rents therefor, applying the rents first to the payment of such expenses as Landlord may have incurred in recovering possession of the Leased Premises, including costs, expenses and reasonable attorney's fees, and for placing the Leased Premises in good order and condition or preparing or altering the Leased Premises for reletting, and all other, expenses, commission and charges incurred by Landlord in connection with reletting the Leased Premises, and then to the fulfillment of the covenants of Tenant. Any such reletting may be for the remainder of the Term or for a longer or shorter period. Landlord may execute any lease made pursuant to the terms hereof either in Landlord's name or in the name of Tenant, as Landlord may see fit, and the subtenant therein shall be under no obligation whatsoever for the application by Landlord of any rent collected by Landlord from such subtenant to any and all sums, due and owing or which may become due and owing under the provisions of this Lease. Tenant shall have no right or authority to collect any rent from such subtenant. In any case and whether or not the Leased Premises or any part thereof be relet, Tenant shall pay to Landlord all Rent required to be paid by Tenant up to the time of re-entry by Landlord. Thereafter, Tenant, if required by Landlord, shall pay to Landlord, until the end of the Tenn, the equivalent of the amount of all Rent, less the net proceeds of a reletting, if any, during the Term, after payment of the expenses of Landlord. Such rent shall be due and payable at the times provided for installments of Rent, and Landlord need not wait until the termination of this Lease to recover any Rent by legal action or otherwise. Re- entry by Landlord shall not constitute an election to terminate this Lease unless Landlord gives Tenant Notice of Landlord's election to terminate. Landlord shall not be responsible or liable for any failure to relet the Leased Premises, or any part thereof, or for any failure to collect any rent due upon such reletting; or (b) Declare this Lease terminated, re-enter the Leased Premises with process of law, eject all parties in possession thereof and repossess and enjoy the Leased Premises, and Landlord shall thereupon be entitled to recover from Tenant the present value, at the time of such termination, of the amount of Rent for the balance of the Term at an annual capitalization rate of eight percent (8%). 13.3 Remedies Not Exclusive; No Waiver; Specific Performance. The remedies of Landlord set forth in this Lease are in addition to and not exclusive of any other remedy of Landlord which may be permitted at law or in equity, and if any breach or threatened breach of this Lease by Tenant occurs, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise in addition to rights set forth in this Lease. Tenant shall permit any re-entry without hindrance to Landlord, and Landlord shall not be liable in damages or guilty of trespass or eviction because of such re-entry. The failure of Landlord to insist, in any one or more instances, upon a strict performance of any of the covenants of this Lease or to exercise any right or remedy contained herein, shall not be construed as a waiver or a relinquishment for the future of such covenant or option. A receipt by Landlord of any installment of Net Rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No waiver by Landlord of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. In addition to the other remedies 1' h 619/015610-0048 017 304489.07 PM02 -13 - contained in this Lease and by law provided, Landlord shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the provisions of this Lease or to a decree compelling performance of any of such covenants, conditions or provisions. ARTICLE XIV Indemnity 14.1 Tenant's Indemnity. Tenant shall defend, indemnify and hold harmless Landlord, its agents, and any and all affiliates of Landlord, including, without limitation, any public agency or other entities controlling, controlled by or under common control with Landlord, from and against any and all claims or liabilities arising from Tenant's use or occupancy of the Leased Premises or the Land or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Leased Premises and the Land, and shall further defend, indemnify and hold harmless Landlord, its agents and affiliates against and from any and all claims or liabilities arising from any breach or default in the performance of any obligation on Tenant's part to be performed hereunder, or arising from any act or negligence of Tenant, or of its agents, employees, visitors, patrons, guests, invitees or licensees, including vendors, servicing Tenant at its request, and from and against all costs, attorneys' fees, expenses and liabilities incurred in or about any such claims or liabilities or any actions or proceedings brought thereon. Notwithstanding the foregoing, Tenant shall not be liable for damage or injury occasioned by the gross negligence or willful misconduct of Landlord or its designated agents, servants or employees, unless covered by insurance Tenant is required to provide. This obligation to indemnify shall include Tenant's payment of reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred or suffered by Landlord from Landlord's receipt of the first notice that any claim or demand is to be made or may be made. Landlord may, at its option, require Tenant to assume Landlord's defense in any action covered by this Section 14.1 through counsel satisfactory to Landlord. As used in this Lease, the term "gross negligence" shall mean the failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. ARTICLE XV Miscellaneous 15.1 Recording. Landlord and Tenant each covenant to the other not to record, or cause to be recorded, this Lease or any short form thereof. 15.2 Estoppel Certificates. Each party agrees at reasonable intervals and from time to time upon not fewer than ten (10) business days' prior written Notice by the other to execute, acknowledge and deliver a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications), (b) the dates to which the installments of Rent have been paid in advance, if any, and (c) stating whether or not, to the best knowledge of the signer of such certificate, the other party is in default in performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which the signer may 018 619/015610-0048 -14- 304489.07 PM02 have knowledge. Each party acknowledges that any such statement delivered under this Lease may be relied upon by third parties. 15.3 Right to Enter. Landlord shall have the right to enter the Leased Premises (a) at reasonable hours upon prior reasonable notice to Tenant (verbal or written) for any purpose permitted or required by thus Lease; or (b) at any time that an emergency exists, to examine the Leased Premises or to make such repairs and alterations as shall be reasonably necessary for the safety and preservation of the Leased Premises. 15.4 Governing Law. This Lease shall be construed and applied in accordance with the laws of the State of California. 15.5 Severability. Any provision or provisions of this Lease which shall prove to be invalid, void, or illegal shall in no way affect or impair or invalidate any other provision, and the remaining provisions shall remain in full force and effect. 15.6 Headings. The headings of the various Articles and Sections of this Lease are inserted for reference only and shall not to any extent have the effect of modifying, amending or changing the express terms and provisions of this Lease. 15.7 Notices. All notices, demands, elections, deliveries and other communications between Landlord and Tenant required or desired to be given in connection with this Lease ("Notices"), to be effective hereunder, shall, except as otherwise expressly provided in this Lease, be in writing, and shall be deemed to be given and received (a) when delivered personally; or (b) two (2) days after being deposited with a national overnight courier service (e.g., Federal Express) or with the United States Postal Service as certified mail, return receipt requested, in either event with all charges or postage prepaid and addressed as follows: If to Landlord, La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, CA 92253 Attention: Frank J. Spevacek With a Copy to: Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 Attention: M. Katherine Jenson, Esq. And if to Tenant, Independent Golf Research 619/015610-0048 L 9 304489.07 PM02 -15- Attention: With a Copy to: Attention: Either Landlord or Tenant may from time to time designate another address for the receipt of future Notices by a Notice given as provided in this Section 15.7 to the other party at the address set forth in, or as last provided by such other party in accordance with, this Section 15.7. 15.8 Amendments and Waivers. Neither this lease nor any term or provision hereof may be changed, waived, or discharged orally, but only by an instrument in writing signed by the party against which the enforcement of the change, waiver, or discharge is sought. 15.9 Successors and Assigns. Notwithstanding anything contained herein to the contrary, this Lease shall be binding upon and inure to the benefit, as the case may require, of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 15.10 Subordination. This Lease shall be subject and subordinate at all times to the lien of any mortgage or deed of trust, which may now or at any time hereafter be alien upon the Land. Tenant shall execute and deliver such further instrument or instruments subordinating this Lease to the lien of any such mortgage or deed of trust as shall be reasonably requested by any mortgagee or party secured or proposed mortgagee or party proposed to be secured. Tenant shall attorn to any successor to Landlord by foreclosure or deed in lieu thereof or to any purchaser at a foreclosure sale of the Leased Premises. 1.5.11 Assignment of Landlord's Interest. If Landlord should ever assign this Lease or the rents hereunder to a creditor as security for a debt, Tenant shall, after Notice of such assignment and upon demand by Landlord or the assignee, pay all sums thereafter becoming due Landlord hereunder to the assignee and give all Notices required to be given Landlord hereunder both to Landlord and the assignee. Landlord may assign this Lease, by direct assignment or merger, to an affiliate of Landlord without the approval of Tenant. Landlord shall also have the right to make a collateral assignment of this Lease to its lender without the approval of Tenant. 15.12 Transfer by Landlord. If Landlord sells, leases or in any manner transfers title to the Leased Premises, including foreclosure sale by judicial proceeding or otherwise, the Landlord shall be relieved of all covenants and obligations arising hereunder after the date of such sale, lease or other transfer, provided that such transferee shall agree, in a writing delivered to Tenant, to assume all covenants and obligations of the Landlord hereunder. Tenant agrees that it will attorn to such transferee upon the satisfaction of such conditions, and Tenant shall continue to perform all of the terms, covenants, conditions, and obligations of this Lease. 15.13 Rules and Regulations. Landlord shall have the right, from time to time, to issue reasonable rules and regulations regarding the use of the Leased Premises. When so issued, such 619/015610-0048 _16_ 0 ti 0 304489.07 PM02 rules and regulations shall be considered a part of this Lease. Landlord shall not be liable to Tenant in the violation of any rules and regulations or the breach of any covenant or condition in any lease by any other tenant of the Land. 15.14 Entire Agreement. This Lease contains the entire agreement of the parties with regard to the matters set forth herein. Any other agreements, promises or representations, oral or written, between the parties with respect to such matters are hereby superseded and merged into this Lease. 15.15 Time of Essence. Time is of the essence of this Lease. 15.16 Execution of Counterparts. This Lease may be executed in several counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 15.17 Relationship Between the Parties. Notwithstanding the existence of other relationships between the parties to this Lease, this Lease only controls the relationship between Landlord, as landlord under this Lease, and Tenant, as tenant under this Lease. 02 619/015610-0048 304489.07 PM02 -17 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed to be effective as of the date first written above. ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Thomas P. Genovese Executive Director "Landlord" INDEPENDENT GOLF RESEARCH, a Texas corporation, dba The Dave Pelz Scoring Game School By:_ Name: Its: By:_ Name: Its: "Tenant" 619/015610-0048 304489.07 PM02 -18-,. 2 EXHIBIT "A" DESCRIPTION OF THE LAND 619/015610-0048 023 304489.07 PM02 EXHIBIT `B" DEPICTION OF THE LEASED PREMISES C O- EXHIBIT "B" 30448 .07 P 0 2 TO LEASE 2 304489.07 PM02 ,eA ,OA cej., 4 ZP Q" MEMORANDUM TO: Honorable Chair and Members of the Board FROM: Mark Weiss, Assistant Executive Director DATE: October 1, 2002 SUBJECT: Consent Calendar Item No. 3; Approval of a One -Year Lease by and Between the La Quinta Redevelopment Agency and Pelz Golf School for Agency -Owned Property Located at 79-999 Old Avenue 52 Independent Golf Research (i.e., Pelz Golf School) suggested certain minor revisions to the Lease Agreement contained within the October 1, 2002, Board Agenda package. Staff and Agency Legal Counsel negotiated language with Pelz that would permit Pelz to continue operations on The Ranch site for the upcoming season. The revisions are minor in nature and reflected in the attached redlined document. Generally, the revisions provide for the following: • Clarification that the driveway, walkway and parking area are not part of the leased premises. • Clarification as to what laws and regulations apply to the lease. • Limitations as to the warranty representations regarding the investigations undertaken by Pelz. • Clarification that no rent payment is due for the first month of occupancy. • Limitation on late rent payments/fees. • Clarification as to the expenses being paid by Pelz. • Imposes a reasonableness standard upon the Agency's obligation to consider Pelz' request to use the site for other purposes. • Gives Pelz the right to terminate if it is precluded from operating its programs by law or by conditions of insurance. • Obligates the Agency to defend and indemnify Pelz for certain claims relating to hazardous materials under certain time frames. • Clarifies that neither Agency nor Pelz has the obligation to bring buildings up to code standards. • Clarifies maintenance duties between Pelz and Agency. • Imposes a reasonableness standard to the Agency's decision as to whether to permit Pelz to alter the structures. • Acknowledges that the Agency also must carry standard insurance. • Acknowledges that Pelz has remedies in the event of a default of the Agency. • Imposes an indemnification obligation upon the Agency that is essentially reciprocal to the obligation that had been imposed upon Pelz. The staff recommendation remains that the Agency approve the Lease Agreement. Attachment LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease") is made effective t as of October 1, 2002, by and between THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Landlord") and INDEPENDENT GOLF RESEARCH, a Texas corporation, DBA THE DAVE PELZ SCORING GAME SCHOOL ("Tenant"). RECITALS A. Landlord is the owner of that certain real property located in the City of La Quinta, County of Riverside, State of California, more commonly known as 79-999 Old Avenue 52, located in the city of La Quinta, County of Riverside, State of California, and more particularly described on Exhibit "A", attached hereto and incorporated herein (the "Land"); and (ii) certain improvements located on the Land consisting of two (2) buildings, and surrounding ancillary facilities containing approximately square feet of space, commonly known as the "Ahmanson Ranch House", and appurtenances thereto (collectively, the "Improvements"). The Land and the Improvements are hereinafter referred to together as the "Leased Premises", and are more particularly depicted on Exhibit `B", attached hereto and incorporated herein. Notwithstanding the foregoing, the term "Leased Premises" shall not deemed to include Ji Parking areas, driveways and walkways located on the Land (the "Common Areas"l. B. Tenant is in the business of the development, implementation, operation, instndr management, and supervision of "short game" golf instruction activities, and a variety of clinics, lessons, mini -schools, and outings in connection therewith (collectively, the "Programs"). Tenant desires to provide the Programs on the Leased Premises pursuant to the terms and conditions set forth herein. The Programs shall be known as the "Dave Pelz SWA Scoring Game SchoolTM." C. Landlord desires to lease to Tenant and Tenant desires to lease from Landlord the Leased Premises on the terms and conditions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements set forth herein, Landlord and Tenant agree as follows: ARTICLE I Leased Premises and Use of Name/Logo 1.1 Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Leased Premises , taget of with the non exelusive right to use in eemmen Land,with others the par -king afeas, dfiveways and walk-A,ays leeated en the upon the terms and conditions set forth in this Lease. Tenant hereby covenants and warrants that Tenant shall comply with all applicable laws , rules an -egul tiens, ineluding, withetit limitatien, r dl a' 619/015610-0048_. 304489.11 a10/01/02 „d the City e f La Quinta's ..,,la and r-egulatiefis-, in connection with its operations on the Latnd Leased Premises. 1.2 Conditions of Leased Premises; "AS -IS” Provision. Tenant acknowledges that it has had an adequate opportunity to inspect the Leased Premises and to investigate its physical characteristics and conditions, and hereby waives any and all objections to the physical characteristics and conditions of the Leased Premises. Tenant acknowledges that Landlord has not made any representations, warranties or agreements to or with Tenant as to any matters concerning the Leased Premises, the present use thereof, or the suitability of Tenant's intended use of the Leased Premises. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, existence of hazardous waste or similar substances, purposes to which the Leased Premises is suited, drainage or access to public roads. Tenant further acknowledges and agrees that the Leased Premises is being leased and accepted by Tenant in its present condition, "AS -IS", and that no patent or latent physical condition of the Leased Premises, whether or not known or discovered, shall affect the rights of either party hereto. Tenant has investigated and has is presumed to have knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Leased Premises may be subject. , and is leasiRg the Leased Premises en the basis of its r-eview and detefFainatien of the applieatien and eff-eet e sueh laws acid _eg., ltie fis Tenant has neither received nor relied upon any representations .,uvii concerning such laws and regulations made by Landlord or any person acting under or on behalf of Landlord. Any agfeements,*' . vi .,Fes stations Piet expressly t d in this Lease shall in no way bind T dl d 1.3 Property Facilities. Landlord hereby grants to Tenant the exclusive right to use the Leased Premises, spee-i€ieal-ly including without limitation, the main ranch house, use-ef the office trailer (as further described herein), and these facilities specifically created for the Programs (as may be altered and improved as provided below) fef pufpeses of eendueting its Pr-egrams during the to,.„., of this Lease a Term 1.4 Use of Name/Logo. Tenant hereby authorizes and grants Landlord a license to use its name, trademarks, service marks and logo in Landlord's advertising, public relations and other promotions that relate to the Land or the Leased Premises. Landlord understands and agrees that such authorization and license is non-exclusive and shall terminate upon the expiration or earlier termination of this Agreement. Any use, advertisement or promotional material or information by Landlord using Tenant's name, trademark, service mark and logo, or any of them, must be pre -approved in writing by Tenant, which approval shall not be unreasonably withheld, conditioned or delayed. In no event shall Tenant use the name, trademarks, service marks, or logo of PGA West in connection with Tenant's Programs. Additionally, Tenant shall not use the name, trademarks, service marks, or logo of the La Quinta Resort & Club in connection with Tenant's Programs unless Tenant has obtained the prior written consent of the La Quinta Resort & Club and has delivered evidence of such consent to Landlord. Tenant shall indemnify and hold harmless Landlord from and against any and all losses, costs, expenses (including attorneys' fees), claims, damages and liens, arising or related to Tenant's use of any name, trademarks, service marks, or logos in violation of this Section 1.4. 619/015610-0048 t11, 1 304489.11 a10/01/02 -2- 1.5 "Post -Acquisition" Status of Tenant. Tenant acknowledges that it is a post - acquisition tenant, and 4+at further acknowledges that the Landlord plans to redevelop the sub}eet pr-epe Land and the Improvements following the Term. Tenant hereby waives, relinquishes, and discharges any and all rights or claims for relocation assistance or related benefits or loss of goodwill under any applicable law, including, but not limited to California Government Code Section 7260 et seq. and the State Relocation Assistance and Real Property Acquisition, 25 C.F.R. 6000 et seq., or the comparable federal relocation laws and regulations, or for inverse condemnation. ARTICLE II Lease Term 2.1 Term. The Term of this Lease shall commence October 1, 2002 and shall end May 31, 2003 or upon the earlier termination in accordance with this Lease (the "Term"). ARTICLE III Rent and Operating Expenses 3.1 Rent. Beginning November 1, 2002 and continuing throughout the Term, Tenant shall pay base rent in the amount of FOUR THOUSAND DOLLARS ($4,000.00) der month ("Net Rent") to Landlord at Landlord's address as provided by Section 15.7. No payment shall e required by Tenant for the period October 1, 2002 through October 31, 2002 Net Rent shall be due and payable in advance on or before first (1 S`) day of each calendar month of the Term, without notice or demand from Landlord. Net Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. 3.2 Late Charges. Tenant hereby acknowledges that late payment by Tenant of Net Rent will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by any lender. Accordingly, if any Net Rent shall not be received by Landlord within fifteen (15) days after such amount shall be due, then, without any requirement for notice by Landlord, Tenant shall pay to Landlord a one-time late charge equal to ten per-ee t "n°" of octet, sueh o_a„e afnetint e One Hundred Dollars ($100.00). , •..t,iehever- is eate - The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of such late payment. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default or breach with respect to such overdue amount, nor prevent the exercise of any other rights or remedies granted hereunder. In the event a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of Net Rent, then notwithstanding any other provision of this Lease to the contrary, Net Rent (which shall be deemed to equal the highest amount of Net Rent received by Landlord during the Term as of such date), shall, at Landlord's option, become due and payable quarterly in advance, with additional payment of rent by Tenant or reimbursement of rent received in advance by Landlord, as applicable, on a monthly basis for the quarter in which advance payment was made. 619/015610-0048 x 304489.11 a10/01/02 -3- 3.3 Operating Expenses. During the Term. Tenant shall be responsible for payment of any and all costs, charges and expenses for all utilities and related services provided to or for the Leased Premises for purposes of Tenant's operations, whether billed directly or indirectly to Tenant or Landlord including, but not limited to, as applicable, electric utilities, telephone, water, gas, cable television, landscaping, cleaning expenses, solid waste disposal, pest control and all costs associated with the cost of maintaining the short course greens (collectively, the "Operating Expenses"). In addition to the indemnity provided to Landlord in Section 14.1 herein, Tenant shall indemnify and hold Landlord harmless from and against any loss, cost, charge, expense or damage with respect thereto. 3.4 rIntentionally Deleted.] 3.5 Personal Property Taxes; Possessory Interest Tax. During the Term, Tenant shall pay all taxes assessed against and levied upon Tenant's fixtures, furnishings, equipment, and all other personal property of Tenant contained on the Land or in the Leased Premises prior to delinquency, and when possible Tenant shall cause these fixtures, furnishings, equipment, and other personal property to be assessed and billed separately from the real property of Landlord. If any of Tenant's fixtures, furnishings, equipment, and other personal property is assessed and taxed with Landlord's real property, Tenant shall pay to Landlord Tenant's share of the taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of the taxes applicable to Tenant's property. Furthermore, in accordance with California Revenue & Taxation Code § 107.6, Tenant hereby acknowledges that the possessory interest granted herein may be a taxable interest and, Tenant's obligations with respect to the payment of any and all costs associated with Tenant's use of the Leased Premises shall include, without limitation, the obligation to pay any such possessory interest tax. 3.6 Landlord Contact Person. During the Tenn, Tenant shall direct all questions, concerns, and correspondence regarding repairs or other issues relating to this Lease to Landlord's representative, Frank J. Spevacek, at the address set forth in Section 15.7 herein. ARTICLE IV Occupancy 4.1 Quiet Enjoyment. Provided that no default endit ^^ Event of Default described in Section 13.1 has occurred and is continuing, and subject to performance by Tenant of all of the covenants and provisions of this Lease to be performed by Tenant, Tenant shall have during the Term peaceful and quiet use and possession of the Leased Premises without hindrance on the part of Landlord. 4.2 Use of Leased Premises. Tenant may use the Leased Premises for the purposes set forth hero;,, and for no other- purpose tinless of the Programs and any related activities Tenant may use the Leased Premises for such other purposes as are approved in writing by Landlord, which approval may be granted ^r denied ii r .,,,,-alefd'S Solo .,.,a absE to dise etie fl all not be unreasonably withheld, conditioned or delayed 4.3 44 619/015610-0048 304489.11 a10/01/02 -4- Compliance with Law. Tenant shall not at any time use or occupy the Leased Premises, or permit any act or omission in or about the Leased Premises in violation of any law, statute, ordinance or any governmental rule, regulation or order (collectively, `Law") and Tenant shall, upon written notice from Landlord, discontinue any use of the Leased Premises or the Land which is a violation of Law. At all times during the Tenn, at Tenant's own expense, Tenant shall conform to and comply with the Law and eats of ^ „Haab( nv requirements of Tenant's insurance policies now or hereafter in force and, upon written notice from Landlord. any requirements of Landlord's insurance policies now or hereafter in force, affecting the use or occupancy of all or any part of the Leased Premises or the Land. Without limiting the foregoing, 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, national origin, or ancestry in the use, occupancy, tenure, or enjoyment of the Leased Premises, nor shall Tenant, or any person claiming under or through Tenant, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of any persons in the Leased Premises. Notwithstanding the far-egeing, or- an) expenses dating to any alterations *� nothing to the contrary herein. neither i andlord nor Tenant shall be obligated to pay for any alteration or improvement required in order to required in rde -- cause the Leased Premises required by the Ame -ices-With Disabilities Aet (42 U.S.C. § 2101, et-seq:).o comply with applicable law. 4.4 Tenant's Right to Terminate. Notwithstanding any provision to the contrary set forth herein, if at any time during the Term hereof. the Tenant is precluded from reasonably conducting its Programs on the Leased Premises because (al the operation of he Programs on the Leased Premises would violate or violates a Law, or (b) Landlord's insurance policy or policies impose commercially unreasonable requirements upon Tenant_ en Tenant shall have the right to terminate the Leasc, 4.5 Hazardous Materials. As used herein, the term "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government, including, without limitation, (i) any material or substance which is defined or listed as a "hazardous waste, extremely hazardous waste, restricted hazardous waste," "hazardous substance" or "hazardous material" under any federal, state or local law, statute, ordinance or any governmental rule, regulation or order governing or in any way relating to the release, use, generation, handling, leakage, dumping, discharge or disposal of any of the above (collectively, "Hazardous Material Laws") (ii) petroleum or any petroleum derivative, (iii) any flammable explosive or radioactive material, (iv) any polychlorinated biphenyl and (v) asbestos or any asbestos containing material or derivative. « A l— ---- -, -„ , „ , , . - -- - the beased Premises Tenant hereby agrees that (i) Tenant and each of its affiliates, assignees, subtenants, and their respective agents, servants, employees, representatives and contractors shall not bring onto the Leased Premises or the Land any Hazardous Material in violation of applicable law, (n) Tenant shall immediately notify Landlord in writing in the event Tenant becomes aware of or suspects that there has been any release of any Hazardous Material in violation of applicable law in, on or about the Leased Premises or the Land or that any person has stored or otherwise brought onto the Leased 619/015610-0048 304489.11 a10/01/02 -5- Premises or the Land or any portion thereof any Hazardous Material in violation of applicable law. Tenant agrees to indemnify, defend (with counsel reasonably approved by Landlord), protect and hold Landlord and each of its affiliates, and each and every officer, director, employee, attorney, agent and representative of Landlord (collectively, the "Landlord Parties") harmless from and against any and all claims, actions, administrative proceedings (including informal proceedings), judgments, damages to person or property, punitive damages, penalties, fines, costs, liabilities, interest or losses, including reasonable attorneys' fees and expenses, consultant fees, and expert fees, together with all other costs and expenses of any kind or nature (hereinafter collectively "Claims") resulting directly or indirectly from or in connection with the presence, handling, storage, release or discharge of any Hazardous Material that (i) first occurred after Landlord's � o Y deli e:'�." f � � f the Leased Pr-efnises tTenant. e beginning of the am,^ Term and prior to expiration or Beene. tefmiflatien of the T the Term: and (ii) was caused or contributed to by Tenant, its affiliates and/or their respective agents servant employees representatives and/or contractors Landlord agrees to indemnify defend (with counsel reasonably approved by Tenant), protect and hold Tenant and each of its affiliate and each and every officer, director, employee attorney, agent and representative of Tenant (collectively, the "Tenant-Partie ") harmle from and against any and all claims administrative proceedings (including informal proceedings), judgments, damages o person or property, punitive damages, penalties, fines costs, liabilities, inyre t or to es including reasonable attorneys' fees and expenses consultant fees and expert fees together with all other costs and expenses of any kind or nature (hereinafter collectively "Claims") resulting directly or indirectly from or in connection with the presence, handling, storage release or discharge of anv Hazardou Material that (i) first occurred prior to the beginning of the Term; or (ii) was cause or contributed to by Landlord, its affiliates and/or their respective agents, servants, employees, representatives and/or contractors. Each of the covenants and agreements of the parties set forth in this Section 4.4 shall survive the expiration or earlier termination of this Lease. 4.6 Conduct on Leased Premises. Tenant shall not do, or permit anything to be done, in or on the Leased Premises, which in any way will (a) increase the rate of fire insurance on the Leased Premises; (b) invalidate or conflict with the fire insurance policies on the Leased Premises or fixtures or on personal property kept therein; (c) obstruct or interfere with the rights of Landlord o- T ^^ale -a'^ ether- ten on the Land; (d) subject Landlord to any liability for injury to persons or damage to property; or (e) interfere with the good order of the Leased Premises or the Land. 4.7 Leased Premises - Loss, Damage. Landlord shall not be liable under this Lease to Tenant for injuries to person or damage to property occurring an on the Land and the Leased Premises or to any persons thereon, including, without limitation: (a) a loss of property by theft or burglary, including property placed in the custody of Landlord's employees; (b) damage or injury to person or property on the Leased Premises from the use of any utility on the Leased Premises; (c) any damage or injury caused by action of the natural elements; or (d) damage or injury resulting from (1) the conduct of Tenant, Tenant's contractors, licensees or invitees, whether negligent or otherwise, or (ii) any other act, event or occurrence in or about the Leased Premises other than the grossly negligent or intentional acts of Landlord or Landlord's employees, contractors, licensees or invitees. Tenant shall not make any claim against Landlord for any loss or damage described in this Section. 619/015610-0048 i-. , 1 304489.11 a10/01/02 -6- , ARTICLE V Transfers 5.1 Assiamnent and Subletting. Tenant shall not have the right to sublet the Leased Premises, or any portion thereof, or to assign or mortgage Tenant's interest in this Lease, or any portion thereof, without the prior written consent of Landlord, which consent may be withheld in Landlord's- sole -and -; bseltite-diser-etien not be unreasonably withheld conditioned or dam. In the case of any such subletting or assignment approved by Landlord, Tenant shall remain fully obligated to Landlord for the performance of all terms and conditions of this Lease. NE)PA,ithstaading the , Landlord may, without Tenant's consent, assign this lease to any of its affiliates, successors or assigns. ARTICLE VI ARTICLE VII 6.1 Parking. Tenant's lease of the LeasedPr-emises ineludes 7.1 Common Areas Tenant shall have the non-exclusive right to use, in common with others, the , Common Areas Landlord shall maintain the Common Area in good and clean order and reasonable condition as exists on the date of this Lease, and fit for its intended use. ARTICLE VIII Maintenance and Alterations 8.1 Maintenance by Tenant. Tenant, at its expense, will be responsible for the routine maintenance and upkeep of the Leased Premises, including but not limited to, routine maintenance (less than $500 in any instancel of indoor sprinklers, plumbing, HVAC equipment and other appliances, electrical, lighting facilities (including the replacement of light bulbs), boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, skylights, and other minor building repairs. Ire -ad Tenant shall paint the extefief or- interief suffaees of exterief walls, when neeessaf�- Tenant shall keep the Leased Premises in good and clean order and reasonable condition, fit for its intended use. Tenant will not do, and will take reasonable steps to prevent Tenant's employees, contractors, invitees and guests from doing, any act or things which might in any manner impair the value or usefulness of the Leased Premises or any part thereof, or commit or permit any waste of the Leased Premises or any part thereof. 8.2 Maintenance by Landlord. Landlord, at its expense, agrees to make all major repairs to the Leased Premises and Common Areas, including maintenance of the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, fire alarms and smoke detection systems not located on or in the Leased Premises, fire hydrants, parking lots, walkways, repair or replacement of HVAC, irrigation and utility systems, repair of the well and septic system, repairs to the pool and waterfall and other major building repairs 619/015610-0048 304489.11 a10/01/02 -7- beyond normal maintenance, to be determined by Landlord in its reasonable discretion. Notwithstanding the foregoing, any major repair that is necessitated by the negligent or intentional ac{s} misconduct of Tenant, its affiliates, invitees, guests, agents, employees, or contractors shall be repaired or maintained by Tenant or its designee at Tenant's sole cost and expense. If Tenant does not commence and complete such repairs within a reasonable time frame, Landlord may commence, continue, or complete such repairs at Tenant's cost and expense, payable by Tenant upon demand therefor by Landlord. Landlord shall make all v manner to minimize operational impacts to tenant 8.3 Alterations by Tenant. Tenant may not make any additions, alterations or changes to the Leased Premises without the prior written consent of Landlord, which consent may be withheld in Landlord's — sele— and abseltite—d-iser-etion. not be unreasonably withheld. nditioned. or delayed. ARTICLE IX Surrender of Leased Premises 9.1 Surrender. Upon expiration of the Term, or any earlier termination of this Lease, Tenant shall surrender to Landlord the Leased Premises, including all alterations, improvements and other additions made by Landlord or Tenant, in good order, condition, and repair, reasonable wear and tear excepted. Notwithstanding the foregoing, upon Landlord's written request therefor, which request will itemize the articles to be removed, Tenant shall at Tenant's expense promptly remove or cause to be removed from the Leased Premises or the Land all debris, along with only those articles of furniture, equipment, and trade fixtures, free-standing cabinet work and other articles of any other persons claiming under Tenant, itemized on Landlord's written request for removal, subject to the provisions of Section 8:219 2 below. Tenant shall repair all damage to the Leased Premises or the Land resulting from such removal, which repair shall include the patching and filling of holes and repair of structural damage. In the event that Tenant shall fail to comply with the provisions of this Section 8.4 9A, Landlord may make such repairs and the cost thereof shall be payable by Tenant upon demand. If requested by Landlord, Tenant shall execute, acknowledge and deliver to Landlord an instrument in writing releasing and quitclaiming to Landlord all right, title and interest of Tenant in and to the Leased Premises by reason of this Lease or otherwise. 9.2 Affixed Property. All fixtures, equipment, alterations, additions, improvements and/or appurtenances attached to or built into the Leased Premises prior to or during the term hereof, whether by Landlord at its expense or at the expense of Tenant or both, shall be and remain part of the Leased Premises and shall belong to Landlord unless otherwise expressly provided for in this Lease or unless such removal is required and designated in writing by Landlord pursuant to the provisions of Section 8.1 hereof. Such fixtures, equipment, alterations, additions, improvements and/or appurtenances shall include, without limitation, floor coverings, drapes, paneling, molding, built-in cabinets, doors, vaults, (exclusive of vault doors), plumbing, electrical communications and lighting systems, silencing equipment, all fixtures and outlets for the systems mentioned above and for all telephone, radio, telegraph and television purposes, and any special flooring or ceiling installations. 619/015610-0048 304489.11 a10/01/02 -8- f 1� 9.3 Hold -Over. Tenant shall have no right to occupy the Leased Premises or any portion thereof after expiration of this Lease or Tenant's right to possession of the Leased Premises. In the event Tenant or any party claiming by, through or under Tenant, retains possession of the Leased Premises after the expiration or earlier termination of this Lease, such possession shall constitute and be construed as a tenancy at will only, subject, however, to all of the terms, provisions, covenants and agreements of Tenant hereunder. Tenant or any such party shall pay Landlord, as rent for the entire period of any hold -over tenancy, One Hundred Dollars ($100) per day. In the event of such hold -over, Landlord may immediately exercise all remedies available to Landlord at law or in equity to recover possession of the Leased Premises and for damages. Tenant shall be liable to Landlord for any loss or damage Landlord may sustain by reason of Tenant's failure to surrender possession of the Leased Premises immediately upon the expiration or termination of this Lease. If Tenant shall fail to surrender possession of the Leased Premises immediately upon the expiration or earlier termination of this Lease, Tenant hereby agrees that all the obligations of Tenant and all rights of Landlord applicable during the term of this Lease shall be equally applicable during such period of subsequent occupancy, whether or not a tenancy shall have been created as aforesaid. ARTICLE X Liens 10.1 Lien. Tenant warrants that no person or entity furnishing any improvement, fixture, equipment or facilities in connection with any improvement or construction within or on the Leased Premises shall have any right to a lien, by virtue of action tak.-n by Tenant or o behalf of Tenant by Tenant's employees, a tn-t , or contractors upon the Leased Premises or the Land by virtue of any security interest in such improvement, fixture, equipment or facilities. Tenant shall promptly cause any such claim, stop notice, lis pendens, lien or claim of lien asserted against Landlord or the Leased Premises or the Land by reason of the furnishing of any improvement, fixture, equipment or facilities to the Tenant in connection with any improvement or construction within or on the Leased Premises or the Land requested by Tenant, or any activity of Tenant, to be promptly discharged or paid. Tenant shall defend, indemnify and hold harmless Landlord from and against any such claim, stop notice, lis pendens, lien or claim of lien. ARTICLE XI Insurance 11.1 Tenant's Insurance. (a) Types. Tenant, at no cost and expense to Landlord, shall procure and keep in full force and effect during the Term or case to be procured and kept in full force and effect for the mutual benefit of Landlord and Tenant, insurance policies meeting the minimum requirements set forth below ....Y.. .,..,..,� , ... «.,u�o� Premises in the Seuthem Galifemia are : 619/015610-0048 304489.11 a10/01/02 -9- n �t i (i) comprehensive general liability insurance with respect to the Leased Premises and the operations of or on behalf of Tenant or its agents, officers, directors, and employees in, on or about the Leased Premises in an amount not less than One Million Dollars (SI,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 Landlord 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 Landlord and its officers, employees, and agents shall be additional insureds 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 location on or in the Leased Premises, insurance against fire, peril of flood, extended coverage, vandalism and malicious mischief, and such other additional perils, hazards and risk as now 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. Landlord 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 Tenant 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 Tenant hereunder may be furnished by Tenant under any blanket policy carried by it or undera 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 Landlord prior to the date Tenant is given the right of possession of the Leased Premises or as Landlord may otherwise require, and upon renewals, not less than thirty (30) days prior to the expiration of such coverage. Landlord may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Tenant hereunder. In no event shall the limits of any policy by considered as limiting the liability of Tenant under this Lease. (c) Specific Provisions in Policy. Each policy evidencing insurance required to be carried by Tenant 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 Landlord thirty (30) days prior written notice; and (ii) a waiver by the Tenant's insurer of any right to subrogation against Landlord, 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 Landlord, its agents, employees or representatives. 619/015610-0048 r W" 304489.11 a10/01/02 -10- 1, t '. (d) Landlord's Substitute Performance. In the event that Tenant fails to procure, maintain and/or pay for at the times and for the durations specified in this Section, an,, insurance required by this Section, or fails to carry insurance required by law or governmental regulation, Landlord may (but without obligation to do so) at any time or from time to time, after thirty (30) days written notice to Tenant, procure such insurance and pay the premiums therefor, in which event Tenant shall repay Landlord all sums so paid by Landlord together with interest thereon as provided elsewhere herein, within fifteen (15) days following Landlord's written demand to Tenant for such payment. (e) Landlord's Insurance During the TermLandlord shall maintain reasonable insurance of a nature and in amounts carried by similarly situated landlords for properties similar to the Leased Premise ARTICLE XII Eminent Domain 12.1 Taking. If by any lawful authority through condemnation or under the power of eminent domain: (a) the whole of the Leased Premises shall be taken; or (b) less than the entire Leased Premises shall be taken, but the remainder of the Leased Premises, are not, in Tenant's sole judgment, fit for Tenant to carry on its business therein , then in any such event, Tenant may terminate this Lease, effective as of the date of such taking, and the Rent and other sums paid or payable hereunder shall be prorated as of the date of such termination. 12.2 Damages. All damages awarded for any such taking under the power of eminent domain shall be paid to Landlord, except damages, if any, specifically allocated by the condemning authority, for fixtures and equipment of Tenant used in operation of the Leased Premises. ARTICLE XIII Casualty 13.1 Casualty to Leased Premises. (a) Definitions. (1) "Leased Premises Partial Damage" shall mean damage or destruction to the Leased Premises, the repair of which will cost $5,000.00 or less, as determined by Landlord. (ii) "Leased Premises Total Destruction" shall mean damage or destruction to the Leased Premises, the repair of which will cost more than S5,000.00 as reasonably determined by Landlord. (iii) "Insured Loss" shall mean damage or destruction to the Leased Premises where full insurance proceeds are paid to Landlord. 619/015610-0048 _ o 304489.11 a 10/01 /02 (b) Partial Damag . If a Leased Premises Partial Damage occurs, then Landlord shall repair such damage as soon as reasonable possibly and this Lease shall continue in full force and effect. Tenant shall pay any deductibles payable in connection with such Loss. (c) Total Destruction -Insured Loss. If a Leased Premises Total Destruction that is an Insured Loss occurs, either party may cancel this Lease by delivery of a Notice to the other party within sixty (60) days of the occurrence of such event, effective as of the date of such Notice. If neither party cancels this Lease, then such Total Destruction shall be deemed a Leased Premises Partial Damage and the repair of the Leased Premises shall be governed by the terms of Paragraph 12.1(b) above. (d) Total Destruction -Uninsured Loss. If a Leased Premises Total Destruction that is not an Insured Loss occurs, either party may cancel this Lease by delivery of a Notice to the other party within sixty (60) days of the occurrence of such event, effective as of the date of such Notice. If neither party cancels this Lease, then Landlord shall commence to repair such damage as soon as reasonably possible thereafter at Landlord's expense, in which event this Lease shall continue in full force and effect. In the event Landlord elects to give Notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after the receipt of such Notice to give written notice to Landlord of Tenant's commitment to pay Or the repair of such damage totally at Tenant's expense and without reimbursement from Landlord. Tenant shall provide Landlord with the required funds or satisfactory assurance thereof within thirty (30) days following Tenant's said commitment. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such repairs as soon as reasonably possible. If Tenant does not give such Notice and provide the funds or assurance thereof within the times specified above, this Lease shall terminate as of the date specified in Landlord's Notice of termination. 13.2 Abatement. (a) In the event of damage where this Lease is not terminated, whether or not Landlord or Tenant repairs or restores the Leased Premises, the Rent and other charges, if any, payable by Tenant hereunder shall be abated in proportion to the degree to which Tenant's use of the Leased Premises is impaired for the period during which such damage, its repair or the restoration continues. Except for abatement of Rent and other charges, if any, as aforesaid, all other obligations of Tenant hereunder shall be performed by Tenant with respect to the undamaged portions of the Leased Premises. Tenant shall have no claim against Landlord for any damage suffered by reason of any such repair or restoration, except for claims arising from a default by Landlord in the performance of its. repair and restoration obligations. (b) If Landlord shall be obligated to or elects to repair or restore the Leased Premises under the provisions of Section 12.1 and shall not commence the repair or restoration of the Leased Premises within forty-five (45) days after such obligation shall accrue, or the repair and restoration work is not completed within ninety (90) days of the date of the casualty, Tenant may, at any time prior to the commencement of such repair or completion of the restoration, as the case may be, give Notice to Landlord and to alefidefs er 1 h Tenant 1 1 ti of w Tenant's election to terminate this Lease, effective as of the date of such Notice. 619/015610-0048 304489.11 a10/01/02 -12- "Commencement" as used in this Paragraph shall mean the beginning of the actual construction work on the Leased Premises. 13.3 Waiver of Statutory Rights. Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of the Leased Premises with respect to the termination of this Lease and hereby waive the provisions of any present or future statute (including without limitation Sections 1931,1932 and 1933 of the California Civil Code and any successor statutes) to the extent inconsistent herewith. ARTICLE XIV Defaults and Remedies 14.1 Events of Default. An event of default (an "Event of Default") shall occur under this Lease if: (a) Tenant shall fail to perform any of the terms, conditions or covenants of this Lease to be observed or performed by Tenant and such failure shall continue for more than thirty (30) days after Landlord gives Tenant Notice thereof, unless such default is of a nature that it cannot practically be cured within such thirty (30) day period but can be cured within a reasonable time but in no event later than ninety (90) days, and Tenant is proceeding with due diligence to cure such default; (b) the abandonment of the Leased Premises; or the vacating of the Leased Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Section 10.1 herein is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism; or (c) the occurrence of any of the following events: (a) the making of any general assignment for the benefit of creditors; (b) becoming a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days; (c) the appointment of a trustee or receive to take possession of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or (d) the attachment, execution, or other judicial seizure of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this Section 13.1(c) is contrary td any applicable law, such provision shall be of no force or effect, and not effect the validity of the remaining provisions. Upon the occurrence of any of the foregoing, Landlord may, without limiting Landlord in the exercise of any other right or remedy Landlord may have in law or equity or account of such default, including without limitation, those remedies afforded Landlord pursuant to California Civil Code Section 1951.4, and without any further demand or notice, Landlord may exercise any of the remedies set forth in Section 13.2. 14.2 Landlord's Remedies. Upon the occurrence of an Event of Default, then at Landlord's option and without limiting Landlord in the exercise of any other right or remedy 619/015610-0048 304489.11 a10/01/02 -13- Landlord may have in law or equity on account of such default, including without limitation, those remedies afforded Landlord pursuant to California Civil Code Section 1951.4, and without any further demand or Notice, Landlord may exercise either of the following remedies: (a) Re-enter the Leased Premises with process of lave, take possession thereof and of all improvements, additions, alterations, equipment and fixtures thereon, and eject all parties in possession thereof Landlord may, without terminating this Lease, relet the Leased Premises or any part thereof for the accounts of Landlord or Tenant, receive and collect the rents therefor, applying the rents first to the payment of such expenses as Landlord may have incurred in recovering possession of the Leased Premises, including costs, expenses and reasonable attorney's fees, and for placing the Leased Premises in good order and condition or preparing or altering the Leased Premises for reletting, and all other, expenses, commission and charges incurred by Landlord in connection with reletting the Leased Premises, and then to the fulfillment of the covenants of Tenant. Any such reletting may be for the remainder of the Term or for a longer or shorter period. Landlord may execute any lease made pursuant to the terms hereof either in Landlord's name or in the name of Tenant, as Landlord may see fit, and the subtenant therein shall be under no obligation whatsoever for the application by Landlord of any rent collected by Landlord from such subtenant to any and all sums, due and owing or which may become due and owing under the provisions of this Lease. Tenant shall have no right or authority to collect any rent from such subtenant. In any case and whether or not the Leased Premises or any part thereof be relet, Tenant shall pay to Landlord all Rent required to be paid by Tenant up to the time of re-entry by Landlord. Thereafter, Tenant, if required by Landlord, shall pay to Landlord, until the end of the Term, the equivalent of the amount of all Rent, less the net proceeds of a reletting, if any, during the Term, after payment of the expenses of Landlord. Such rent shall be due and payable at the times provided for installments of Rent, and Landlord need not wait until the termination of this Lease to recover any Rent by legal action or otherwise. Re- entry by Landlord shall not constitute an election to terminate this Lease unless Landlord gives Tenant Notice of Landlord's election to terminate. Landlord shall not be responsible or liable for any failure to relet the Leased Premises, or any part thereof, or for any failure to collect any rent due upon such reletting; or (b) Declare this Lease terminated, re-enter the Leased Premises with process of law, eject all parties in possession thereof and repossess and enjoy the Leased Premises, and Landlord shall thereupon be entitled to recover from Tenant the present value, at the time of such termination, of the amount of Rent for the balance of the Term at an annual capitalization rate of eight percent (8%). 14.3 'Tenant's Remedies If Landlord shall fail to perform any of the terms_ conditions or covenants of this Lease to be observed or performed by Landlord and such failure shall continue for more than thirty (30) days after Tenant givC5 Landlord Notice thereof, unless such default is of a nature that it cannot practically be cured within such thirty (30) day period but can be cured within a reasonable time but in no event later than ninety 90) days and Landlord is proceeding with due dill ence to cure such default then at Tenant's option and without limiting Tenant in the exercise of any other right or remedy Tenant may have in law or equity on account of such default. 619/015610-0048 304489.11 a 10/01 /02 -14- t 14.4 Remedies Not Exclusive; No Waiver; Specific Performance. The remedies e€ Land!e for the parties set forth in this Lease are in addition to and not exclusive of any other remedy of bandler the arties which may be permitted at law or in equity, and if any breach or threatened breach of this Lease by Tenant either party occurs, Landlord the other party shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise in addition to rights set forth in this Lease. Tenant shall permit any re-entry without hindrance to Landlord, and Landlord shall not be liable in damages or guilty of trespass or eviction because of such re-entry. The failure of Lamle either party to insist, in any one or more instances, upon a strict performance of any of the covenants of this Lease or to exercise any right or remedy contained herein, shall not be construed as a waiver or a relinquishment for the future of such covenant or option. A receipt by Landlord of any installment of Net Rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No waiver by Landler-d either party of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlerd the other party. In addition to the other remedies contained in this Lease and by law provided, L er-1 either party shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the provisions of this Lease or to a decree compelling performance of any of such covenants, conditions or provisions. ARTICLE XV Indemnity 15.1 Tenant's Indemnity. Tenant shall defend, indemnify and hold harmless Landlord, its agents, and any and all affiliates of Landlord, including, without limitation, any public agency or other entities controlling, controlled by or under common control with Landlord, from and against any and all claims or liabilities arising from Tenant's use or occupancy of the Leased Premises or the Land or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Leased Premises and the Land, and shall further defend, indemnify and hold harmless Landlord, its agents and affiliates against and from any and all claims or liabilities arising from any breach or default in the performance of any obligation on Tenant's part to be performed hereunder, or arising from any act or negligence of Tenant, or of its agents, employees, visitors, patrons, guests, invitees or licensees, including vendors, servicing Tenant at its request, and from and against all costs, attorneys' fees, expenses and liabilities incurred in or about any such claims or liabilities or any actions or proceedings brought thereon. Notwithstanding the foregoing, Tenant shall not be liable for damage or injury occasioned by the gross negligence or willful misconduct of Landlord or its designated agents, servants or employees, unless covered by insurance Tenant is required to provide. This obligation to indemnify shall include Tenant's payment of reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred or suffered by Landlord from Landlord's receipt of the first notice that any claim or demand is to be made or may be made. Landlord may, at its option, require Tenant to assume Landlord's defense in any action covered by this Section 14.1 through counsel satisfactory to Landlord. 15.2 As used in this T the r Lease, the `—`�rE)$S--rrcgirgenE 'c �shall--rrreaii--thczurlim-e to peffefm a manifest duty in reckless disfegar-d of the eensequenees as aff-eeting the life or prepeft of anethef. 619/015610-0048 304489.11 a10/01/02 - - 15.3 Landlord's IndemnityLandlord shall defend, indemnify and hold harm__lecc Tenant, its agents, and any and all affiliates of Tenant including, without limitation any entities controlling controlled by or under common control with Tenant from and agains any and all claims or liabilities arising from any and all claims or liabilities arising from v breach or default in the performance of any obligation on Landlord's Dart to b performed hereunder, or arising from any act or negligence of i andlord r of Us a ent employees, visitors, patrons, guests_ invitees or licensees, including vendors,ervicing Landlord at its request, and from and against all costs, attorneys' fees_ expenses and liabilities incurred in or about any such claims or liabilities or any actions or proceedings brought thereon, Notwith tanding the foregoing_ Landlord shall not be liable for damage or iniury occasioned by the negligence or willful misconduct of Tenant or its de i nated agents, servants or employees, unless covered by insurance Landlord is reauired to provide. This obligation to indemnify Shall include Landlord's payment of reasonable attorneys' fees and investigation costs and all other reasonable costs,expenses and liabilities incurred or suffered -by Tenant from Tenant's receipt of the first notice that any aim or demand is to be made or may be made Tenant may, at its option reouire Landlord to assume Tenant's --defense in any action covered by this Section 14.1 through counsel satisfactory to Tenant ARTICLE XVI Miscellaneous 16.1 Recording. Landlord and Tenant each covenant to the other not to record, or cause to be recorded, this Lease or any short form thereof. 16.2 Estoppel Certificates. Each party agrees at reasonable intervals and from time to time upon not fewer than ten (10) business days' prior written Notice by the other to execute, acknowledge and deliver a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications), (b) the dates to which the installments of Rent have been paid in advance, if any, and (c) stating whether or not, to the best knowledge of the signer of such certificate, the other party is in default in performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which the signer may have knowledge. Each party acknowledges that any such statement delivered under this Lease may be relied upon by third parties. 16.3 Right to Enter. Landlord shall have the right to enter the Leased Premises (a) at reasonable hours upon prior reasonable notice to Tenant (verbal or written) for any purpose permitted or required by thus Lease this Lease including without limitation for the purpose of inspecting the Leased Premises (provided however, Landlord and Tenant shall cooperate so that any such inspection will not interfere with the Progams); or (b) at any time that an emergency exists, to examine the Leased Premises or to make such repairs and alterations as shall be reasonably necessary for the safety and preservation of the Leased Premises. 16.4 Governing Law. This Lease shall be construed and applied in accordance with the laws of the State of California. 619/015610-0048 304489.11 a10/01/02 -16- t 16.5 Severability. Any provision or provisions of this Lease which shall prove to be invalid, void, or illegal shall in no way affect or impair or invalidate any other provision, and the remaining provisions shall remain in full force and effect. 16.6 Headin,,s. The headings of the various Articles and Sections of this Lease are inserted for reference only and shall not to any extent have the effect of modifying, amending or changing the express terms and provisions of this Lease. 16.7 Notices. All notices, demands, elections, deliveries and other communications between Landlord and Tenant required or desired to be given in connection with this Lease ("Notices"), to be effective hereunder, shall, except as otherwise expressly provided in this Lease, be in writing, and shall be deemed to be given and received (a) when delivered personally; or (b) two (2) days after being deposited with a national overnight courier service (e.g., Federal Express) or with the United States Postal Service as certified mail, return receipt requested, in either event with all charges or postage prepaid and addressed as follows: If to Landlord, La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, CA 92253 Attention: Frank J. Spevacek With a Copy to: Rutan & Tucker, LLP 611 Anton Boulevard, 141h Floor Costa Mesa, CA 92626 Attention: M. Katherine Jenson, Esq. And if to Tenant, Independent Golf Research Attention+ 1310 With Copy to-i Ranch Road 620 SouthSuite B-1 a Austin, L1 ttent..�... Texas 78734 ��ir Attention: JoAnn Pelz Brobeck. Phleger & Harrison LLP 4801 Plaza on the Lake Austin, Texas 78746 Attention: Philip W. Russell. Esq. { 619/OI5610-0048 a � 304489.11 a10/01/02 -17- i Either Landlord or Tenant may from time to time designate another address for the receipt of future Notices by a Notice given as provided in this Section 15.7 to the other party at the address set forth in, or as last provided by such other party in accordance with, this Section 15.7. 16.8 Amendments and Waivers. Neither this lease nor any term or provision hereof may be changed, waived, or discharged orally, but only by an instrument in writing signed by the party against which the enforcement of the change, waiver, or discharge is sought. 16.9 Successors and Assi this. Notwithstanding anything contained herein to the contrary, this Lease shall be binding upon and inure to the benefit, as the case may require, of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 16.10 Subordination. This Lease shall be subject and subordinate at all times to the lien of any mortgage or deed of trust, which may now or at any time hereafter be alien a lien upon the Land. Tenant shall execute and deliver such further instrument or instruments subordinating this Lease to the lien of any such mortgage or deed of trust as shall be reasonably requested by any mortgagee or party secured or proposed mortgagee or party proposed to be secured. Tenant shall attorn to any successor to Landlord by foreclosure or deed in lieu thereof or to any purchaser at a foreclosure sale of the Leased Premises. 16.11 Assi ,nment of Landlord's Interest. If Landlord should ever assign this Lease or the rents hereunder to a creditor as security for a debt, Tenant shall, after Notice of such assignment and upon demand by Landlord or the assignee, pay all sums thereafter becoming due Landlord hereunder to the assignee and give all Notices required to be given Landlord hereunder both to Landlord and the assignee. Landlord may assign this Lease, by direct assignment or merger, to an affiliate of Landlord without the approval of Tenant. Landlord shall also have the right to make a collateral assignment of this Lease to its lender without the approval of Tenant. 16.12 Transfer by Landlord. If Landlord sells, leases or in any manner transfers title to the Leased Premises, including foreclosure sale by judicial proceeding or otherwise, the Landlord shall be relieved of all covenants and obligations arising hereunder after the date of such sale, lease or other transfer, provided that such transferee shall agree, in a writing delivered to Tenant, to assume all covenants and obligations of the Landlord hereunder. Tenant agrees that it will attorn to such transferee upon the satisfaction of such conditions, and Tenant shall continue to perform all of the terms, covenants, conditions, and obligations of this Lease. 16.13 Rules and Regulations. Landlord shall have the right, from time to time, to issue reasonable rules and regulations regarding the use of the Leased Premises. When so issued, such rules and regulations shall be considered a part of this Lease. Landlord shall not be liable to Tenant in the violation of any rules and regulations or the breach of any covenant or condition in any lease by any other tenant of the Land. 16.14 Entire Agreement. This Lease contains the entire agreement of the parties with regard to the matters set forth herein. Any other agreements, promises or representations, oral or written, between the parties with respect to such matters are hereby superseded and merged into 619/015610-0048 r 304489.11 a10/01/02 -18- this Lease. Any agreements warranties or representations not expressly contained in this Lease shall in no wav bind Landlord and Tenant 16.15 Time of Essence. Time is of the essence of this Lease. 16.16 Execution of Counterparts. This Lease may be executed in several counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 16.17 Relationship Between the Parties. Notwithstanding the existence of other relationships between the parties to this Lease, this Lease only controls the relationship between Landlord, as landlord under this Lease, and Tenant, as tenant under this Lease. 619/015610-0048 -. '^ 304489.11 a10/01/02 -19- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed to be effective as of the date first written above. ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic UA Thomas P. Genovese Executive Director "Landlord" INDEPENDENT GOLF RESEARCH, a Texas corporation, dba The Dave Pelz Scoring Game School By:_ Name: Its: By: Name: Its: "Tenant" 619/015610-0048 304489.11 a10/01/02 -20- 10,14 l- DESCRIPTION OF THE LAND 9-999 Old Avenue 52. located in the City of a Ouinta. County of Riverside, State --of California, and more particularly depicted on ExhihittK 619/015610-0048 304489.11 a10/01/02 EXHIBIT "B" DEPICTION OF THE LEASED PREMISES EXHIBIT `B" 619/015610-0048 304489.11 a10/01/02 TO LEASE t This redlined draft, generated by CompareRite (TM) - The Instant Redliner, shows the differences between - original document : G:\DOCSOPEN\DOCS1\619\6SY107!.DOC and revised document: GADOCSOPEN\DOCS1\619\6SY111!.DOC CompareRite found 89 change(s) in the text Deletions appear as Overstrike text Additions appear as Bold+Dbl Underline text 619/015610-0048 304489.11 a10/01/02 -2- LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease") is made effective as of October 1, 2002, by and between THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Landlord") and INDEPENDENT GOLF RESEARCH, a Texas corporation, DBA THE DAVE PELZ SCORING GAME SCHOOL ("Tenant"). RECITALS A. Landlord is the owner of that certain real property located in the City of La Quinta, County of Riverside, State of California, more commonly known as 79-999 Old Avenue 52, located in the city of La Quinta, County of Riverside, State of California, and more particularly described on Exhibit "A", attached hereto and incorporated herein (the "Land"); and (ii) certain improvements located on the Land consisting of two (2) buildings, and surrounding ancillary facilities containing approximately square feet of space, commonly known as the "Ahmanson Ranch House", and appurtenances thereto (collectively, the "Improvements"). The Land and the Improvements are hereinafter referred to together as the "Leased Premises", and are more particularly depicted on Exhibit `B", attached hereto and incorporated herein. Notwithstanding the foregoing, the term "Leased Premises" shall not deemed to include the parking areas, driveways and walkways located on the Land (the "Common Areas"). B. Tenant is in the business of the development, implementation, operation, management, and supervision of "short game" golf instruction activities, and a variety of clinics, lessons, mini -schools, and outings in connection therewith (collectively, the "Programs"). Tenant desires to provide the Programs on the Leased Premises pursuant to the terms and conditions set forth herein. The Programs shall be known as the "Dave Pelz Scoring Game SchoolTM " C. Landlord desires to lease to Tenant and Tenant desires to lease from Landlord the Leased Premises on the terms and conditions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements set forth herein, Landlord and Tenant agree as follows: ARTICLE I Leased Premises and Use of Name/Lo14o 1.1 Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Leased Premises upon the terms and conditions set forth in this Lease. Tenant hereby covenants and warrants that Tenant shall comply with all applicable laws in connection with its operations on the Leased Premises. 619/015610-0048 304489.11 AM02 1.2 Conditions of Leased Premises; "AS -IS" Provision. Tenant acknowledges that it has had an adequate opportunity to inspect the Leased Premises and to investigate its physical characteristics and conditions, and hereby waives any and all objections to the physical characteristics and conditions of the Leased Premises. Tenant acknowledges that Landlord has not made any representations, warranties or agreements to or with Tenant as to any matters concerning the Leased Premises, the present use thereof, or the suitability of Tenant's intended use of the Leased Premises. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, existence of hazardous waste or similar substances, purposes to which the Leased Premises is suited, drainage or access to public roads. Tenant further acknowledges and agrees that the Leased Premises is being leased and accepted by Tenant in its present condition, "AS -IS", and that no patent or latent physical condition of the Leased Premises, whether or not known or discovered, shall affect the rights of either party hereto. Tenant is presumed to have knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Leased Premises may be subject. Tenant has neither received nor relied upon any representations concerning such laws and regulations made by Landlord or any person acting under or on behalf of Landlord. 1.3 Property Facilities. Landlord hereby grants to Tenant the exclusive right to use the Leased Premises, including without limitation, the main ranch house, the office trailer (as further described herein), and facilities specifically created for the Programs (as may be altered and improved as provided below) during the Term. 1.4 Use of Name/Logo. Tenant hereby authorizes and grants Landlord a license to use its name, trademarks, service marks and logo in Landlord's advertising, public relations and other promotions that relate to the Land or the Leased Premises. Landlord understands and agrees that such authorization and license is non-exclusive and shall terminate upon the expiration or earlier termination of this Agreement. Any use, advertisement or promotional material or information by Landlord using Tenant's name, trademark, service mark and logo, or any of them, must be pre -approved in writing by Tenant, which approval shall not be unreasonably withheld, conditioned or delayed. In no event shall Tenant use the name, trademarks, service marks, or logo of PGA West in connection with Tenant's Programs. Additionally, Tenant shall not use the name, trademarks, service marks, or logo of the La Quinta Resort & Club in connection with Tenant's Programs unless Tenant has obtained the prior written consent of the La Quinta Resort & Club and has delivered evidence of such consent to Landlord. Tenant shall indemnify and hold harmless Landlord from and against any and all losses, costs, expenses (including attorneys' fees), claims, damages and liens, arising or related to Tenant's use of any name, trademarks, service marks, or logos in violation of this Section 1.4. 1.5 "Post -Acquisition" Status of Tenant. Tenant acknowledges that it is a post - acquisition tenant, and further acknowledges that the Landlord plans to redevelop the Land and the Improvements following the Term. Tenant hereby waives, relinquishes, and discharges any and all rights or claims for relocation assistance or related benefits or loss of goodwill under any applicable law, including, but not limited to California Government Code Section 7260 et seq. and the State Relocation Assistance and Real Property Acquisition, 25 C.F.R. 6000 et seq., or the comparable federal relocation laws and regulations, or for inverse condemnation. 619/015610-0048 ( r 304489.11 AM02 -2- t 4. ARTICLE II Lease Term 2.1 Term. The Term of this Lease shall commence October 1, 2002 and shall end May 31, 2003 or upon the earlier termination in accordance with this Lease (the "Term"). ARTICLE III Rent and Operating Expenses 3.1 Rent. Beginning November 1, 2002 and continuing throughout the Term, Tenant shall pay base rent in the amount of FOUR THOUSAND DOLLARS ($4,000.00) per month ("Net Rent") to Landlord at Landlord's address as provided by Section 15.7. No payment shall be required by Tenant for the period October 1, 2002 through October 31, 2002. Net Rent shall be due and payable in advance on or before first (P) day of each calendar month of the Term, without notice or demand from Landlord. Net Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. 3.2 Late Charges. Tenant hereby acknowledges that late payment by Tenant of Net Rent will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by any lender. Accordingly, if any Net Rent shall not be received by Landlord within fifteen (15) days after such amount shall be due, then, without any requirement for notice by Landlord, Tenant shall pay to Landlord a one-time late charge equal to One Hundred Dollars ($100.00). The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of such late payment. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default or breach with respect to such overdue amount, nor prevent the exercise of any other rights or remedies granted hereunder. In the event a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of Net Rent, then notwithstanding any other provision of this Lease to the contrary, Net Rent (which shall be deemed to equal the highest amount of Net Rent received by Landlord during the Term as of such date), shall, at Landlord's option, become due and payable quarterly in advance, with additional payment of rent by Tenant or reimbursement of rent received in advance by Landlord, as applicable, on a monthly basis for the quarter in which advance payment was made. 3.3 Operating Expenses. During the Term, Tenant shall be responsible for payment of any and all costs, charges and expenses for all utilities and related services provided to or for the Leased Premises for purposes of Tenant's operations, whether billed directly or indirectly to Tenant or Landlord including, but not limited to, as applicable, electric utilities, telephone, water, gas, cable television, landscaping, cleaning expenses, solid waste disposal, pest control and all costs associated with the cost of maintaining the short course greens (collectively, the "Operating Expenses"). In addition to the indemnity provided to Landlord in Section 14.1 herein, Tenant 619/015610-0048 `. 1) 304489.11 AM02 -3- ( shall indemnify and hold Landlord harmless from and against any loss, cost, charge, expense or damage with respect thereto. 3.4 jlntentionally Deleted.] 3.5 Personal Property Taxes, Possessory Interest Tax. During the Term, Tenant shall pay all taxes assessed against and levied upon Tenant's fixtures, furnishings, equipment, and all other personal property of Tenant contained on the Land or in the Leased Premises prior to delinquency, and when possible Tenant shall cause these fixtures, furnishings, equipment, and other personal property to be assessed and billed separately from the real property of Landlord. If any of Tenant's fixtures, furnishings, equipment, and other personal property is assessed and taxed with Landlord's real property, Tenant shall pay to Landlord Tenant's share of the taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of the taxes applicable to Tenant's property. Furthermore, in accordance with California Revenue & Taxation Code § 107.6, Tenant hereby acknowledges that the possessory interest granted herein may be a taxable interest and, Tenant's obligations with respect to the payment of any and all costs associated with Tenant's use of the Leased Premises shall include, without limitation, the obligation to pay any such possessory interest tax. 3.6 Landlord Contact Person. During the Term, Tenant shall direct all questions, concerns, and correspondence regarding repairs or other issues relating to this Lease to Landlord's representative, Frank J. Spevacek, at the address set forth in Section 15.7 herein. ARTICLE IV Occupancy 4.1 Quiet Enjoyment. Provided that no Event of Default described in Section 13.1 has occurred and is continuing, and subject to performance by Tenant of all of the covenants and provisions of this Lease to be performed by Tenant, Tenant shall have during the Term peaceful and quiet use and possession of the Leased Premises without hindrance on the part of Landlord. 4.2 Use of Leased Premises. Tenant may use the Leased Premises for the purposes of the Programs and any related activities. Tenant may use the Leased Premises for such other purposes as are approved in writing by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Compliance with Law. Tenant shall not at any time use or occupy the Leased Premises, or permit any act or omission in or about the Leased Premises in violation of any law, statute, ordinance or any governmental rule, regulation or order (collectively, "Law") and Tenant shall, upon written notice from Landlord, discontinue any use of the Leased Premises or the Land which is a violation of Law. At all times during the Term, at Tenant's own expense, Tenant shall conform to and comply with any requirements of Tenant's insurance policies now or hereafter in force and, upon written notice from Landlord, any requirements of Landlord's insurance policies now or hereafter in force, affecting the use or occupancy of all or any part of the Leased Premises or the Land. Without limiting the foregoing, 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, national origin, or ancestry in the use, occupancy, tenure, or enjoyment of the 619/015610-0048 304489.11 AM02 -4- 1 + Leased Premises, nor shall Tenant, or any person claiming under or through Tenant, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of any persons in the Leased Premises. Notwithstanding anything to the contrary herein, neither Landlord nor Tenant shall be obligated to pay for any alteration or improvement required in order to cause the Leased Premises to comply with applicable law. 4.3 Tenant's Right to Terminate. Notwithstanding any provision to the contrary set forth herein, if at any time during the Term hereof, the Tenant is precluded from reasonably conducting its Programs on the Leased Premises because (a) the operation of the Programs on the Leased Premises would violate or violates a Law, or (b) Landlord's insurance policy or policies impose commercially unreasonable requirements upon Tenant, then Tenant shall have the right to terminate the Lease. 4.4 Hazardous Materials. As used herein, the term "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government, including, without limitation, (i) any material or substance which is defined or listed as a "hazardous waste, extremely hazardous waste, restricted hazardous waste," "hazardous substance" or "hazardous material" under any federal, state or local law, statute, ordinance or any governmental rule, regulation or order governing or in any way relating to the release, use, generation, handling, leakage, dumping, discharge or disposal of any of the above (collectively, "Hazardous Material Laws") (ii) petroleum or any petroleum derivative, (iii) any flammable explosive or radioactive material, (iv) any polychlorinated biphenyl and (v) asbestos or any asbestos containing material or derivative. Tenant hereby agrees that (i) Tenant and each of its affiliates, assignees, subtenants, and their respective agents, servants, employees, representatives and contractors shall not bring onto the Leased Premises or the Land any Hazardous Material in violation of applicable law, (ii) Tenant shall immediately notify Landlord in writing in the event Tenant becomes aware of or suspects that there has been any release of any Hazardous Material in violation of applicable law in, on or about the Leased Premises or the Land or that any person has stored or otherwise brought onto the Leased Premises or the Land or any portion thereof any Hazardous Material in violation of applicable law. Tenant agrees to indemnify, defend (with counsel reasonably approved by Landlord), protect and hold Landlord and each of its affiliates, and each and every officer, director, employee, attorney, agent and representative of Landlord (collectively, the "Landlord Parties") harmless from and against any and all claims, actions, administrative proceedings (including informal proceedings), judgments, damages to person or property, punitive damages, penalties, fines, costs, liabilities, interest or losses, including reasonable attorneys' fees and expenses, consultant fees, and expert fees, together with all other costs and expenses of any kind or nature (hereinafter collectively "Claims") resulting directly or indirectly from or in connection with the presence, handling, storage, release or discharge of any Hazardous Material that (i) first occurred after the beginning of the Term and prior to expiration the Term; and (ii) was caused or contributed to by Tenant, its affiliates and/or their respective agents, servants, employees, representatives and/or contractors. Landlord agrees to indemnify, defend (with counsel reasonably approved by Tenant), protect and hold Tenant and each of its affiliates, and each and every officer, director, employee, attorney, agent and representative of Tenant (collectively, the "Tenant Parties") harmless from and against any and all claims, actions, administrative proceedings (including informal proceedings), judgments, damages to person or 619/015610-0048 304489.11 AM02 -5- t property, punitive damages, penalties, fines, costs, liabilities, interest or losses, including reasonable attorneys' fees and expenses, consultant fees, and expert fees, together with all other costs and expenses of any kind or nature (hereinafter collectively "Claims") resulting directly or indirectly from or in connection with the presence, handling, storage, release or discharge of any Hazardous Material that (i) first occurred prior to the beginning of the Term; or (ii) was caused or contributed to by Landlord, its affiliates and/or their respective agents, servants, employees, representatives and/or contractors. Each of the covenants and agreements of the parties set forth in this Section 4.4 shall survive the expiration or earlier termination of this Lease. 4.5 Conduct on Leased Premises. Tenant shall not do, or permit anything to be done, in or on the Leased Premises, which in any way will (a) increase the rate of fire insurance on the Leased Premises; (b) invalidate or conflict with the fire insurance policies on the Leased Premises or fixtures or on personal property kept therein; (c) obstruct or interfere with the rights of Landlord on the Land; (d) subject Landlord to any liability for injury to persons or damage to property; or (e) interfere with the good order of the Leased Premises or the Land. 4.6 Leased Premises - Loss, Damage. Landlord shall not be liable under this Lease to Tenant for injuries to person or damage to property occurring on the Land and the Leased Premises or to any persons thereon, including, without limitation: (a) a loss of property by theft or burglary, including property placed in the custody of Landlord's employees; (b) damage or injury to person or property on the Leased Premises from the use of any utility on the Leased Premises; (c) any damage or injury caused by action of the natural elements; or (d) damage or injury resulting from (i) the conduct of Tenant, Tenant's contractors, licensees or invitees, whether negligent or otherwise, or (ii) any other act, event or occurrence in or about the Leased Premises other than the grossly negligent or intentional acts of Landlord or Landlord's employees, contractors, licensees or invitees. Tenant shall not make any claim against Landlord for any loss or damage described in this Section. ARTICLE V Transfers. 5.1 Assimnent and Subletting. Tenant shall not have the right to sublet the Leased Premises, or any portion thereof, or to assign or mortgage Tenant's interest in this Lease, or any portion thereof, without the prior written consent of Landlord, which consent may not be unreasonably withheld, conditioned or delayed. In the case of any such subletting or assignment approved by Landlord, Tenant shall remain fully obligated to Landlord for the performance of all terms and conditions of this Lease. Landlord may, without Tenant's consent, assign this lease to any of its affiliates, successors or assigns. ARTICLE VI Common Areas 6.1 Common Areas. Tenant shall have the non-exclusive right to use, in common with others, the Common Areas. Landlord shall maintain the Common Areas in good and clean order and reasonable condition as exists on the date of this Lease, and fit for its intended use. 619/015610-0048 304489.11 AM02 -6- �� p ARTICLE VII Maintenance and Alterations 7.1 Maintenance by Tenant. Tenant, at its expense, will be responsible for the routine maintenance and upkeep of the Leased Premises, including but not limited to, routine maintenance (less than $500 in any instance) of indoor sprinklers, plumbing, HVAC equipment and other appliances, electrical, lighting facilities (including the replacement of light bulbs), boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, skylights, and other minor building repairs. Tenant shall keep the Leased Premises in good and clean order and reasonable condition, fit for its intended use. Tenant will not do, and will take reasonable steps to prevent Tenant's employees, contractors, invitees and guests from doing, any act or things which might in any manner impair the value or usefulness of the Leased Premises or any part thereof, or commit or permit any waste of the Leased Premises or any part thereof. 7.2 Maintenance by Landlord. Landlord, at its expense, agrees to make all major repairs to the Leased Premises and Common Areas, including maintenance of the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, fire alarms and smoke detection systems not located on or in the Leased Premises, fire hydrants, parking lots, walkways, repair or replacement of HVAC, irrigation and utility systems, repair of the well and septic system, repairs to the pool and waterfall and other major building repairs beyond normal maintenance, to be determined by Landlord in its reasonable discretion. Notwithstanding the foregoing, any major repair that is necessitated by the negligent or intentional misconduct of Tenant, its affiliates, invitees, guests, agents, employees, or contractors shall be repaired or maintained by Tenant or its designee at Tenant's sole cost and expense. If Tenant does not commence and complete such repairs within a reasonable time frame, Landlord may commence, continue, or complete such repairs at Tenant's cost and expense, payable by Tenant upon demand therefor by Landlord. Landlord shall make all repairs in a timely manner to minimize operational impacts to tenant. 7.3 Alterations by Tenant. Tenant may not make any additions, alterations or changes to the Leased Premises without the prior written consent of Landlord, which consent may not be unreasonably withheld, conditioned, or delayed. ARTICLE VIII Surrender of Leased Premises 8.1 Surrender. Upon expiration of the Term, or any earlier termination of this Lease, Tenant shall surrender to Landlord the Leased Premises, including all alterations, improvements and other additions made by Landlord or Tenant, in good order, condition, and repair, reasonable wear and tear excepted. Notwithstanding the foregoing, upon Landlord's written request therefor, which request will itemize the articles to be removed, Tenant shall at Tenant's expense promptly remove or cause to be removed from the Leased Premises or the Land all debris, along with only those articles of furniture, equipment, and trade fixtures, free-standing cabinet work and other articles of any other persons claiming under Tenant, itemized on Landlord's written 619/015610-0048 €_ t 304489.11 AM02 -7- request for removal, subject to the provisions of Section 9.2 below. Tenant shall repair all damage to the Leased Premises or the Land resulting from such removal, which repair shall include the patching and filling of holes and repair of structural damage. In the event that Tenant shall fail to comply with the provisions of this Section 9.1, Landlord may make such repairs and the cost thereof shall be payable by Tenant upon demand. If requested by Landlord, Tenant shall execute, acknowledge and deliver to Landlord an instrument in writing releasing and quitclaiming to Landlord all right, title and interest of Tenant in and to the Leased Premises by reason of this Lease or otherwise. 8.2 Affixed Property. All fixtures, equipment, alterations, additions, improvements and/or appurtenances attached to or built into the Leased Premises prior to or during the term hereof, whether by Landlord at its expense or at the expense of Tenant or both, shall be and remain part of the Leased Premises and shall belong to Landlord unless otherwise expressly provided for in this Lease or unless such removal is required and designated in writing by Landlord pursuant to the provisions of Section 8.1 hereof. Such fixtures, equipment, alterations, additions, improvements and/or appurtenances shall include, without limitation, floor coverings, drapes, paneling, molding, built-in cabinets, doors, vaults, (exclusive of vault doors), plumbing, electrical communications and lighting systems, silencing equipment, all fixtures and outlets for the systems mentioned above and for all telephone, radio, telegraph and television purposes, and any special flooring or ceiling installations. 8.3 Hold -Over. Tenant shall have no right to occupy the Leased Premises or any portion thereof after expiration of this Lease or Tenant's right to possession of the Leased Premises. In the event Tenant or any party claiming by, through or under Tenant, retains possession of the Leased Premises after the expiration or earlier termination of this Lease, such possession shall constitute and be construed as a tenancy at will only, subject, however, to all of the terms, provisions, covenants and agreements of Tenant hereunder. Tenant or any such party shall pay Landlord, as rent for the entire period of any hold -over tenancy, One Hundred Dollars ($100) per day. In the event of such hold -over, Landlord may immediately exercise all remedies available to Landlord at law or in equity to recover possession of the Leased Premises and for damages. Tenant shall be liable to Landlord for any loss or damage Landlord may sustain by reason of Tenant's failure to surrender possession of the Leased Premises immediately upon the expiration or termination of this Lease. If Tenant shall fail to surrender possession of the Leased Premises immediately upon the expiration or earlier termination of this Lease, Tenant hereby agrees that all the obligations of Tenant and all rights of Landlord applicable during the term of this Lease shall be equally applicable during such period of subsequent occupancy, whether or not a tenancy shall have been created as aforesaid. ARTICLE IX Liens 9.1 Lien. Tenant warrants that no person or entity furnishing any improvement, fixture, equipment or facilities in connection with any improvement or construction within or on the Leased Premises shall have any right to a lien, by virtue of action taken by Tenant or on behalf of Tenant by Tenant's employees, agents, or contractors, upon the Leased Premises or the Land by virtue of any security interest in such improvement, fixture, equipment or facilities. 619/015610-0048 ' 304489.11 AM02 -8- Tenant shall promptly cause any such claim, stop notice, lis pendens, lien or claim of lien asserted against Landlord or the Leased Premises or the Land by reason of the furnishing of any improvement, fixture, equipment or facilities to the Tenant in connection with any improvement or construction within or on the Leased Premises or the Land requested by Tenant, or any activity of Tenant, to be promptly discharged or paid. Tenant shall defend, indemnify and hold harmless Landlord from and against any such claim, stop notice, lis pendens, lien or claim of lien. ARTICLE X Insurance 10.1 Tenant's Insurance. (a) Types. Tenant, at no cost and expense to Landlord, shall procure and keep in full force and effect during the Term or case to be procured and kept in full force and effect for the mutual benefit of Landlord and Tenant, insurance policies meeting the minimum requirements set forth below: (1) comprehensive general liability insurance with respect to the Leased Premises and the operations of or on behalf of Tenant or its agents, officers, directors, and employees in, on or about the Leased 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 Landlord 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 Landlord and its officers, employees, and agents shall be additional insureds 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 location on or in the Leased Premises, insurance against fire, peril of flood, extended coverage, vandalism and malicious mischief, and such other additional perils, hazards and risk as now 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. Landlord 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 Tenant 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 Tenant hereunder may be furnished by Tenant 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 619/015610-0048 304489.11 AM02 -9- coverage required by this Section and containing provisions specified herein, shall be delivered to Landlord prior to the date Tenant is given the right of possession of the Leased Premises or as Landlord may otherwise require, and upon renewals, not less than thirty (30) days prior to the expiration of such coverage. Landlord may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Tenant hereunder. In no event shall the limits of any policy by considered as limiting the liability of Tenant under this Lease. (c) Specific Provisions in Policy. Each policy evidencing insurance required to be carried by Tenant 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 Landlord thirty (30) days prior written notice; and (ii) a waiver by the Tenant's insurer of any right to subrogation against Landlord, 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 Landlord, its agents, employees or representatives. (d) Landlord's Substitute Performance. In the event that Tenant fails to procure, maintain and/or pay for at the times and for the durations specified in this Section, any insurance required by this Section, or fails to carry insurance required by law or governmental regulation, Landlord may (but without obligation to do so) at any time or from time to time, after thirty (30) days written notice to Tenant, procure such insurance and pay the premiums therefor, in which event Tenant shall repay Landlord all sums so paid by Landlord together with interest thereon as provided elsewhere herein, within fifteen (15) days following Landlord's written demand to Tenant for such payment. (e) Landlord's Insurance. During the Term, Landlord shall maintain reasonable insurance of a nature and in amounts carried by similarly situated landlords for properties similar to the Leased Premises. ARTICLE XI Eminent Domain 11.1 Taking. If by any lawful authority through condemnation or under the power of eminent domain: (a) the whole of the Leased Premises shall be taken; or (b) less than the entire Leased Premises shall be taken, but the remainder of the Leased Premises, are not, in Tenant's sole judgment, fit for Tenant to carry on its business therein , then in any such event, Tenant may terminate this Lease, effective as of the date of such taking, and the Rent and other sums paid or payable hereunder shall be prorated as of the date of such termination. 11.2 Damages. All damages awarded for any such taking under the power of eminent domain shall be paid to Landlord, except damages, if any, specifically allocated by the condemning authority, for fixtures and equipment of Tenant used in operation of the Leased Premises. 619/015610-0048 ( PM l 304489.11 AM02 -10- ARTICLE XII Casualty 12.1 Casualty to Leased Premises. (a) Definitions. (i) "Leased Premises Partial Damage" shall mean damage or destruction to the Leased Premises, the repair of which will cost $5,000.00 or less, as determined by Landlord. (ii) "Leased Premises Total Destruction" shall mean damage or destruction to the Leased Premises, the repair of which will cost more than $5,000.00 as reasonably determined by Landlord. (Ili) "Insured Loss" shall mean damage or destruction to the Leased Premises where full insurance proceeds are paid to Landlord. (b) Partial Damage. If a Leased Premises Partial Damage occurs, then Landlord shall repair such damage as soon as reasonable possibly and this Lease shall continue in full force and effect. Tenant shall pay any deductibles payable in connection with such Loss. (c) Total Destruction -Insured Loss. If a Leased Premises Total Destruction that is an Insured Loss occurs, either party may cancel this Lease by delivery of a Notice to the other party within sixty (60) days of the occurrence of such event, effective as of the date of such Notice. If neither party cancels this Lease, then such Total Destruction shall be deemed a Leased Premises Partial Damage and the repair of the Leased Premises shall be governed by the terms of Paragraph 12.1(b) above. (d) Total Destruction -Uninsured Loss. If a Leased Premises Total Destruction that is not an Insured Loss occurs, either party may cancel this Lease by delivery of a Notice to the other party within sixty (60) days of the occurrence of such event, effective as of the date of such Notice. If neither party cancels this Lease, then Landlord shall commence to repair such damage as soon as reasonably possible thereafter at Landlord's expense, in which event this Lease shall continue in full force and effect. In the event Landlord elects to give Notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after the receipt of such Notice to give written notice to Landlord of Tenant's commitment to pay Or the repair of such damage totally at Tenant's expense and without reimbursement from Landlord. Tenant shall provide Landlord with the required fiends or satisfactory assurance thereof within thirty (30) days following Tenant's said commitment. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such repairs as soon as reasonably possible. If Tenant does not give such Notice and provide the funds or assurance thereof within the times specified above, this Lease shall terminate as of the date specified in Landlord's Notice of termination. 6I9/015610-0048 b 304489.11 AM02 -11- 12.2 Abatement. (a) In the event of damage where this Lease is not terminated, whether or not Landlord or Tenant repairs or restores the Leased Premises, the Rent and other charges, if any, payable by Tenant hereunder shall be abated in proportion to the degree to which Tenant's use of the Leased Premises is impaired for the period during which such damage, its repair or the restoration continues. Except for abatement of Rent and other charges, if any, as aforesaid, all other obligations of Tenant hereunder shall be performed by Tenant with respect to the undamaged portions of the Leased Premises. Tenant shall have no claim against Landlord for any damage suffered by reason of any such repair or restoration, except for claims arising from a default by Landlord in the performance of its. repair and restoration obligations. (b) If Landlord shall be obligated to or elects to repair or restore the Leased Premises under the provisions of Section 12.1 and shall not commence the repair or restoration of the Leased Premises within forty-five (45) days after such obligation shall accrue, or the repair and restoration work is not completed within ninety (90) days of the date of the casualty, Tenant may, at any time prior to the commencement of such repair or completion of the restoration, as the case may be, give Notice to Landlord of Tenant's election to terminate this Lease, effective as of the date of such Notice. "Commencement" as used in this Paragraph shall mean the beginning of the actual construction work on the Leased Premises. 12.3 Waiver of Statutory Rights. Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of the Leased Premises with respect to the termination of this Lease and hereby waive the provisions of any present or future statute (including without limitation Sections 1931,1932 and 1933 of the California Civil Code and any successor statutes) to the extent inconsistent herewith. ARTICLE XIII Defaults and Remedies 13.1 Events of Default. An event of default (an "Event of Default") shall occur under this Lease if: (a) Tenant shall fail to perform any of the terms, conditions or covenants of this Lease to be observed or performed by Tenant and such failure shall continue for more than thirty (30) days after Landlord gives Tenant Notice thereof, unless such default is of a nature that it cannot practically be cured within such thirty (30) day period but can be cured within a reasonable time but in no event later than ninety (90) days, and Tenant is proceeding with due diligence to cure such default; (b) the abandonment of the Leased Premises; or the vacating of the Leased Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Section 10.1 herein is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism; or (c) the occurrence of any of the following events: (a) the making of any general assignment for the benefit of creditors; (b) becoming a "debtor" as defined in 11 U.S.C. 619/015610-0048 304489.11 AM02 -12- �` `R Section 101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days; (c) the appointment of a trustee or receive to take possession of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or (d) the attachment, execution, or other judicial seizure of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this Section 13.1(c) is contrary to any applicable law, such provision shall be of no force or effect, and not effect the validity of the remaining provisions. Upon the occurrence of any of the foregoing, Landlord may, without limiting Landlord in the exercise of any other right or remedy Landlord may have in law or equity or account of such default, including without limitation, those remedies afforded Landlord pursuant to California Civil Code Section 1951.4, and without any further demand or notice, Landlord may exercise any of the remedies set forth in Section 13.2. 13.2 Landlord's Remedies. Upon the occurrence of an Event of Default, then at Landlord's option and without limiting Landlord in the exercise of any other right or remedy Landlord may have in law or equity on account of such default, including without limitation, those remedies afforded Landlord pursuant to California Civil Code Section 1951.4, and without any further demand or Notice, Landlord may exercise either of the following remedies: (a) Re-enter the Leased Premises with process of law, take possession thereof and of all improvements, additions, alterations, equipment and fixtures th-creon, and eject all parties in possession thereof Landlord may, without terminating this Lease, relet the Leased Premises or any part thereof for the accounts of Landlord or Tenant, receive and collect the rents therefor, applying the rents first to the payment of such expenses as Landlord may have incurred in recovering possession of the Leased Premises, including costs, expenses and reasonable attorney's fees, and for placing the Leased Premises in good order and condition or preparing or altering the Leased Premises for reletting, and all other, expenses, commission and charges incurred by Landlord in connection with reletting the Leased Premises, and then to the fulfillment of the covenants of Tenant. Any such reletting may be for the remainder of the Term or for a longer or shorter period. Landlord may execute any lease made pursuant to the terms hereof either in Landlord's name or in the name of Tenant, as Landlord may see fit, and the subtenant therein shall be under no obligation whatsoever for the application by Landlord of any rent collected by Landlord from such subtenant to any and all sums, due and owing or which may become due and owing under the provisions of this Lease. Tenant shall have no right or authority to collect any rent from such subtenant. In any case and whether or not the Leased Premises or any part thereof be relet, Tenant shall pay to Landlord all Rent required to be paid by Tenant up to the time of re-entry by Landlord. Thereafter, Tenant, if required by Landlord, shall pay to Landlord, until the end of the Term, the equivalent of the amount of all Rent, less the net proceeds of a reletting, if any, during the Term, after payment of the expenses of Landlord. Such rent shall be due and payable at the times provided for installments of Rent, and Landlord need not wait until the termination of this Lease to recover any Rent by legal action or otherwise. Re- entry by Landlord shall not constitute an election to terminate this Lease unless Landlord gives Tenant Notice of Landlord's election to terminate. Landlord shall not be responsible or liable for 619/015610-0048 304489.11 AM02 -13- "� any failure to relet the Leased Premises, or any part thereof, or for any failure to collect any rent due upon such reletting; or (b) Declare this Lease terminated, re-enter the Leased Premises with process of law, eject all parties in possession thereof and repossess and enjoy the Leased Premises, and Landlord shall thereupon be entitled to recover from Tenant the present value, at the time of such termination, of the amount of Rent for the balance of the Term at an annual capitalization rate of eight percent (8%). 13.3 Tenant's Remedies. If Landlord shall fail to perform any of the terms, conditions or covenants of this Lease to be observed or performed by Landlord and such failure shall continue for more than thirty (30) days after Tenant gives Landlord Notice thereof, unless such default is of a nature that it cannot practically be cured within such thirty (30) day period but can be cured within a reasonable time but in no event later than ninety (90) days, and Landlord is proceeding with due diligence to cure such default, then at Tenant's option and without limiting Tenant in the exercise of any other right or remedy Tenant may have in law or equity on account of such default. 13.4 Remedies Not Exclusive; No Waiver; Specific Performance. The remedies for the parties set forth in this Lease are in addition to and not exclusive of any other remedy of the parties which may be permitted at law or in equity, and if any breach or threatened breach of this Lease by either party occurs, the other party shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise in addition to rights set forth in this Lease. Tenant shall permit any re-entry without hindrance to Landlord, and Landlord shall not be liable in damages or guilty of trespass or eviction because of such re-entry. The failure of either party to insist, in any one or more instances, upon a strict performance of any of the covenants of this Lease or to exercise any right or remedy contained herein, shall not be construed as a waiver or a relinquishment for the future of such covenant or option. A receipt by Landlord of any installment of Net Rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No waiver by either party of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by the other party. In addition to the other remedies contained in this Lease and by law provided, either party shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the provisions of this Lease or to a decree compelling performance of any of such covenants, conditions or provisions. ARTICLE XIV Indemnity 14.1 Tenant's Indemnity. Tenant shall defend, indemnify and hold harmless Landlord, its agents, and any and all affiliates of Landlord; including, without limitation, any public agency or other entities controlling, controlled by or under common control with Landlord, from and against any and all claims or liabilities arising from Tenant's use or occupancy of the Leased Premises or the Land or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Leased Premises and the Land, and shall further defend, indemnify and hold harmless Landlord, its agents and affiliates against and from any and 619/015610-0048 304489.11 AM02 -14- ` 'i all claims or liabilities arising from any breach or default in the performance of any obligation on Tenant's part to be performed hereunder, or arising from any act or negligence of Tenant, or of its agents, employees, visitors, patrons, guests, invitees or licensees, including vendors, servicing Tenant at its request, and from and against all costs, attorneys' fees, expenses and liabilities incurred in or about any such claims or liabilities or any actions or proceedings brought thereon. Notwithstanding the foregoing, Tenant shall not be liable for damage or injury occasioned by the gross negligence or willful misconduct of Landlord or its designated agents, servants or employees, unless covered by insurance Tenant is required to provide. This obligation to indemnify shall include Tenant's payment of reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred or suffered by Landlord from Landlord's receipt of the first notice that any claim or demand is to be made or may be made. Landlord may, at its option, require Tenant to assume Landlord's defense in any action covered by this Section 14.1 through counsel satisfactory to Landlord. 14.2 Landlord's Indemnity. Landlord shall defend, indemnify and hold harmless Tenant, its agents, and any and all affiliates of Tenant, including, without limitation, any entities controlling, controlled by or under common control with Tenant, from and against any and all claims or liabilities arising from any and all claims or liabilities arising from any breach or default in the performance of any obligation on Landlord's part to be performed hereunder, or arising from any act or negligence of Landlord, or of its agents, employees, visitors, patrons, guests, invitees or licensees, including vendors, servicing Landlord at its request, and from and against all costs, attorneys' fees, expenses and liabilities incurred in or about any such claims or liabilities or any actions or proceedings brought thereon. Notwithstanding the foregoing, Landlord shall not be liable for damage or injury occasioned by the negligence or willful misconduct of Tenant or its designated agents, servants or employees, unless covered by insurance Landlord is required to provide. This obligation to indemnify shall include Landlord's payment of reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred or suffered by Tenant from Tenant's receipt of the first notice that any claim or demand is to be made or may be made. Tenant may, at its option, require Landlord to assume Tenant's defense in any action covered by this Section 14.1 through counsel satisfactory to Tenant. ARTICLE XV Miscellaneous 15.1 Recording. Landlord and Tenant each covenant to the other not to record, or cause to be recorded, this Lease or any short form thereof. 15.2 Estoppel Certificates. Each party agrees at reasonable intervals and from time to time upon not fewer than ten (10) business days' prior written Notice by the other to execute, acknowledge and deliver a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications), (b) the dates to which the installments of Rent have been paid in advance, if any, and (c) stating whether or not, to the best knowledge of the signer of such certificate, the other party is in default in performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which the signer may 6191015610-0048 304489.11 AM02 -15- ` ►" have knowledge. Each party acknowledges that any such statement delivered under this Lease may be relied upon by third parties. 15.3 Right to Enter. Landlord shall have the right to enter the Leased Premises (a) at reasonable hours upon prior reasonable notice to Tenant (verbal or written) for any purpose permitted or required by this Lease, including, without limitation for the purpose of inspecting the Leased Premises (provided, however, Landlord and Tenant shall cooperate so that any such inspection will not interfere with the Progams); or (b) at any time that an emergency exists, to examine the Leased Premises or to make such repairs and alterations as shall be reasonably necessary for the safety and preservation of the Leased Premises. 15.4 Goveming Law. This Lease shall be construed and applied in accordance with the laws of the State of California. 15.5 Severability. Any provision or provisions of this Lease which shall prove to be invalid, void, or illegal shall in no way affect or impair or invalidate any other provision, and the remaining provisions shall remain in full force and effect. 15.6 Headings. The headings of the various Articles and Sections of this Lease are inserted for reference only and shall not to any extent have the effect of modifying, amending or changing the express terms and provisions of this Lease. 15.7 Notices. All notices, demands, elections, deliveries and other communications between Landlord and Tenant required or desired to be given in connection with this Lease ("Notices"), to be effective hereunder, shall, except as otherwise expressly provided in this Lease, be in writing, and shall be deemed to be given and received (a) when delivered personally; or (b) two (2) days after being deposited with a national overnight courier service (e.g., Federal Express) or with the United States Postal Service as certified mail, return receipt requested, in either event with all charges or postage prepaid and addressed as follows: If to Landlord, La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, CA 92253 Attention: Frank J. Spevacek With a Copy to: Rutan & Tucker, LLP 611 Anton Boulevard, 141h Floor Costa Mesa, CA 92626 Attention: M. Katherine Jenson, Esq. And if to Tenant, Independent Golf Research r 619/015610-0048 304489.11 AM02 -16- 1310 Ranch Road 620 South, Suite B-1 Austin, Texas 78734 Attention: JoAnn Pelz With a Copy to: Brobeck, Phleger & Harrison LLP 4801 Plaza on the Lake Austin, Texas 78746 Attention: Philip W. Russell, Esq. Either Landlord or Tenant may from time to time designate another address for the receipt of future Notices by a Notice given as provided in this Section 15.7 to the other party at the address set forth in, or as last provided by such other party in accordance with, this Section 15.7. 15.8 Amendments and Waivers. Neither this lease nor any term or provision hereof may be changed, waived, or discharged orally, but only by an instrument in writing signed by the party against which the enforcement of the change, waiver, or discharge is sought. 15.9 Successors and Assigns. Notwithstanding anything contained herein to the contrary, this Lease shall be binding upon and inure to the benefit, as the case may require, of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 15.10 Subordination. This Lease shall be subject and subordinate at all times to the lien of any mortgage or deed of trust, which may now or at any time hereafter be a lien upon the Land. Tenant shall execute and deliver such further instrument or instruments subordinating this Lease to the lien of any such mortgage or deed of trust as shall be reasonably requested by any mortgagee or party secured or proposed mortgagee or party proposed to be secured. Tenant shall attorn to any successor to Landlord by foreclosure or deed in lieu thereof or to any purchaser at a foreclosure sale of the Leased Premises. 15.11 Assienment of Landlord's Interest. If Landlord should ever assign this Lease or the rents hereunder to a creditor as security for a debt, Tenant shall, after Notice of such assignment and upon demand by Landlord or the assignee, pay all sums thereafter becoming due Landlord hereunder to the assignee and give all Notices required to be given Landlord hereunder both to Landlord and the assignee. Landlord may assign this Lease, by direct assignment or merger, to an affiliate of Landlord without the approval of Tenant. Landlord shall also have the right to make a collateral assignment of this Lease to its lender without the approval of Tenant. 15.12 Transfer by Landlord. If Landlord sells, leases or in any manner transfers title to the Leased Premises, including foreclosure sale by judicial proceeding or otherwise, the Landlord shall be relieved of all covenants and obligations arising hereunder after the date of such sale, lease or other transfer, provided that such transferee shall agree, in a writing delivered to Tenant, to assume all covenants and obligations of the Landlord hereunder. Tenant agrees that it will attorn to such transferee upon the satisfaction of such conditions, and Tenant shall continue to perform all of the terms, covenants, conditions, and obligations of this Lease. 619/015610-0048 304489.11 AM02 -1 7- s 15.13 Rules and Regulations. Landlord shall have the right, from time to time, to issue reasonable rules and regulations regarding the use of the Leased Premises. When so issued, such rules and regulations shall be considered a part of this Lease. Landlord shall not be liable to Tenant in the violation of any rules and regulations or the breach of any covenant or condition in any lease by any other tenant of the Land. 15.14 Entire Agreement. This Lease contains the entire agreement of the parties with regard to the matters set forth herein. Any other agreements, promises or representations, oral or written, between the parties with respect to such matters are hereby superseded and merged into this Lease. Any agreements, warranties or representations not expressly contained in this Lease shall in no way bind Landlord and Tenant. 15.15 Time of Essence. Time is of the essence of this Lease. 15.16 Execution of Counterparts. This Lease may be executed in several counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 15.17 Relationship Between the Parties. Notwithstanding the existence of other relationships between the parties to this Lease, this Lease only controls the relationship between Landlord, as landlord under this Lease, and Tenant, as tenant under this Lease. [THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK. SIGNATURES FOLLOW.] 619/015610-0048 P++ 304489.11 AM02 -1 8- C , IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed to be effective as of the date first written above. ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Thomas P. Genovese Executive Director "Landlord" INDEPENDENT GOLF RESEARCH, a Texas corporation, dba The Dave Pelz Scoring Game School By:_ Name: Its: By:_ Name: Its: "Tenant" 619/015610-0048 304489.11 AM02 -19- EXHIBIT "A" DESCRIPTION OF THE LAND 79-999 Old Avenue 52, located in the City of La Quinta, County of Riverside, State of California, and more particularly depicted on Exhibit `B" 619,'015610-0048 304489.11 AM02 DEPICTION OF THE LEASED PREMISES [SEE ATTACHED DEPICTION] EXHIBIT `B" 619/015610-0048 304489.11 AM02 TO LEASE t' c&t,/ 4 s(P Q" COUNCIL/RDA MEETING DATE: October 1, 2002 ITEM TITLE: Approval of Contract Change Order No. 81 and Acceptance of Jefferson Street Improvements, Phase I, Avenue 54 to Highway 1 1 1 Project No. 99-05 •t VIqL1•1 AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve Contract Change Order No. 81 in an amount not -to -exceed $271,477.00, to compensate the Contractor for home office and field overhead costs incurred as a result of contract delays beyond the Contractor's control; and Accept Phase I Jefferson Street Improvements - Avenue 54 to Highway 1 1 1, Project No. 99-05, as complete; and Authorize the City Clerk to file a Notice of Completion with the office of the County Recorder; and Authorize staff to release securities in lieu of retention held in escrow for this project, 35 days from the date of recording the Notice of Completion. FISCAL IMPLICATIONS: The following represents the project budget and funding sources: SB 300 (401-000-493-485) $713,412 Art in Public Places (401-000-493-000) $10,800 Infrastructure Funds (401-000-493-000) $1,037,978 RDA CIP 1 (401-000-493-000) $849,674 CVAG Funding (401-000-466-481) $12,589,513 TOTAL FUNDING: $15,201,377 TAPWDEPT\COUNCIL\2002\021001 b.wpd The following summarizes project budgeted amounts by category and their respective amounts: Project Design: $625,769 Technical Support: $1,143,365 Construction: $1 1 ,727,365 Right -of -Way Acquisition: $908,150 Contingency: $80,809 Administration: $715,919 Total $15,201,377 The following represents a summary of the project construction expenditures: Base Construction Contract Amount: $6,866,566 CCO Nos. 1-80: $2,289,410 CCO No. 81: $271,477 REVISED CONTRACT TOTAL: $9,427,453 As illustrated, Contract Change Order No. 81 will increase the contract by $271,477 and add 139 consecutive calendar days to the contract. Adequate funding is available in the project budget to accept and close this project. [slamC140WAMWIlley-1,1111610 None. This project was awarded to Granite Construction Company on June 6, 2000, with the provision that the Notice to Proceed would not be issued until January 1, 2001. The original contract duration was 300 consecutive calendar days in which to perform the specified scope of work. The following represents the project time as constructed: 771 consecutive calendar days used (5/1 /00 - 6/1 1 /02) (69) Contractor self imposed work stoppage (2/12/02 - 4/22/02) (300) Original contract days (5/1 /00 - 2/24/01) (85) days granted the Contractor for extra work through CCO Nos. 1-77 & 79 (178) days of unavoidable delay approved CCO#78 (8/18/01-2/1 1 /02) (139) days of unavoidable delay pending CCO#81 (5/9/00 - 10/19/00) 0 unaccounted for contract days f 002 TAMDEMCOUNCIL\2002\021001 b.wpd The contract specifications allow for compensation of indirect field overhead as well as home office overhead costs by using a standard formula in order to derive each (see Attachment 1 - CCO No. 81). Additionally, the Contractor is entitled to receive 139 days added to the contract time by reason of these unavoidable delays. The Contractor was delayed by circumstances beyond the Contractor's control during removal and reconstruction of the All American Canal bridge. In order to accomplish this, the existing sewer force main adjacent to the bridge had to be removed and relocated as well. CVWD withheld the necessary permit to begin this portion of work while they evaluated the need for a change in the pipe material of the force main. This change was due to a previous sewage spill from a similar facility at another location within the CVWD system. The District issued the permit for this work, with a change in material specified for the above ground piping from mild steel to stainless steel for better corrosion resistance. Stainless steel pipe of this diameter is not a "shelf" item and required many weeks to be fabricated and delivered, after approval of submittals by CVWD. The alternatives available include: 1. A. Approve Contract Change No. 81 in an amount not -to -exceed $271,477.00, to compensate the Contractor for home office and field overhead costs incurred as a result of contract delays beyond the Contractor's control; and B. Accept Phase I Jefferson Street Improvements - Avenue 54 to Highway 1 1 1, Project No. 99-05, as complete; and C. Authorize the City Clerk to file a Notice of Completion with the office of the County Recorder; and D. Authorize staff to release securities posted in lieu of retention held in escrow for this project, 35 days from the date of recording the Notice of Completion; or 2. Do not approve Contract Change Order No. 81, or accept Phase I Jefferson Street Improvements - Avenue 54 to Highway 1 1 1, Project No. 99-05; or 3. Provide staff with alternative direction. CS OU3 TAMDEMCOUNCIL\2002\021 001 b.wpd Respectfully submitted, 4imothy R. nas n, �P-E- Public Works Director/City Engineer Attachments: 1. CCO #81 Approved for submission, by: Thomas P. Genovese, Executive Director T AP W DEPT\COUNCIL\2002\021001 bRDA. wpd 004 ATTACHMENT 1 ti C 4� OF t9 CONTRACT: Sheet 1 of 21 JEFFERSON STREET IMPROVEMENTS PROJECT NO. 99-05 HIGHWAY 111 TO AVENUE 54 CONTRACTOR: Granite Construction Company 38-000 Monroe Street Indio, California 92203 CONTRACT CHANGE ORDER NO. 81 ****************************************************************************************** Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. DESCRIPTION OF CHANGE: This Contract Change Order Provides compensation to the Contractor for Home Office Overhead and Indirect Field overhead costs incurred by the Contractor as a result of contract delays beyond the control of the Contractor. Home Office Overhead is calculated as specified in the contract as; original contract value divided by the total contract days, multiplied by 0.03 to determine a daily overhead costs ($686.66) added to the daily Field indirect costs ($1,266.42) multiplied by the validated number of days delayed (139) 686.66 + 1266.42 X 139 = $271,477 TOTAL COMPENSATION FOR THIS CONTRACT CHANGE ORDER SHALL NOT EXCEED: $271,477.00 ********************************************************************************************* Previous Contract Amount through Change Order No. 80 $9,155,976 Add this Contract Change Order No. 81 $271 477 Revised Contract Amount $9,427,453 By reason of this change order the time of completion is adjusted as follows: 139 days added to contract time. The revised contract completion date shall be June 11, 2002. Submitted By: Date: Approved By (City of Indio): Date: Approved By (City of L.Q.): Date: ******************************************************************************************** We, the undersigned Contractor, have give car ful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all m erial perform all labor, except as may be noted above, and perform all services necessary to complete the above specified work, and hereby acc 7asfu ayment the amount shown above, which includes direct and indirect overhead ,expenses for any delays. Accepted By: Title: y" :< Contractor: Granite Construction CompanV Date: Zf 3 02 i TAPWDEPT\PROJECTS\1999 Pricts\99-OSJeffSt154-Ind81vd1\CCO 81.wpd JEFFERSON STREET IMPROVEMENTS PHASE I - AVENUE 54 TO HIGHWAY 111 PROJECT NO. 99-05, CONTRACT CHANGE ORDER NO. 81 Home Office Overhead Calculation: Relocating the sewer force main and changing the pipe material of the force main at CVWD's request caused this task, a "controlling item of work" to be extended from the Contractor's original schedule of 10 days to a total of 179 days as confirmed by the Resident Engineer's records. After review of this work task staff has determined that the actual work took 40 days for the Contractor to complete rather than the Contractor's original schedule of 10 days. Since the 40 days were required to perform the task under the original contract these days were deducted from the gross time of 179 days from the contract change order resulting in a difference of 139 days of unavoidable delay time associated with this controlling item of work. To determine the value of this delay to the Contractor the contract specifications acknowledge indirect field office, staff and equipment as compensable for actual costs of indirect personnel, field office rental, office equipment etc. The Contractor has submitted evidence of costs for these items equal to $1,266.42 per calendar day. This item is multiplied by the number of days delayed of 139 to derive a cost of $176,032.38. To determine the value of this delay for reimbursement of home office overhead the contract specification provides a standard calculation as follows: Original Contract Value $6,866,566 Divided by the Contract Time - 300 Subtotal $22,888.55 Multiplied by 3% X 0.03 Daily Home Office Overhead Costs $686.66 Times 139 days of delay X 139 Total Home Office Overhead $95,445 Total Field Indirect Costs $176,032 Total Delay Costs for CCO #81 $271,477 0i.#7 TAMDEPT\PROJECTS\1999 Prjcts\99-05JeffStl54-IndBlvdl\CCO 81.wpd JEFFERSON ST. IMPROVEMENTS INDIRECT FIELD OVERHEAD CALCULATIONS A. FIELD OFFICE -EQUIPMENT.- TRAILER RENT MOBILE MODULAR $ 446.12 PER MONTH FENCE RENT AMERICAN FENCE $ 165.00 PER MONTH POWER POLE RENT POWER PLUS $ 110.00 PER MONTH ALARM SYSTEM GET ALARMED SECURITY $ 175.00 PER MONTH SEPTIC TANK RENT WASTE MANAGEMENT $ 198.06 PER MONTH 2 EACH STORAGE BOX RENT WASTE MANAGEMENT $ 180.00 PER MONTH 2 EACH PORT-0-LET RENT WASTE MANAGEMENT $ 140.34 PER MONTH 2 EACH DUMPSTER RENT WASTE MANAGEMENT $ 194.10 PER MONTH BOTTLED WATER SPARKLETTS $ 38.02 PER MONTH ELECTRIC SERVICE I.I.D. $ 109.28 PER MONTH PHONE SERVICE VERIZON $ 278.48 PER MONTH COPIER SERVICE VALLEY OFFICE EQUIP $ 42.01 PER MONTH 2-WAY RADIO COMM R.A:E. COMMUNICATION $ 123.91 PER MONTH CLEARING YARD J.V. LAND CLEARING $ 132.50 PER MONTH COMPUTERS C.D.W. $ 302.68 PER MONTH TOTAL $ 2,635.50 PER MONTH 3/27/2002 $2,635.50 PER MONTH @ 30 CAL DAYS/MONTH = $87.85 PER CAL DAY B. FIELD OFFICE STAFF: 2 EACH PROJECT ENGINEER GRANITE $ 4,900.00 PER WEEK PROJECT MANAGER GRANITE $ 3,350.00 PER WEEK TOTAL $ 8,250.00 PER WEEK $8,250.00 PER WEEK @ 7 CAL DAYS/WEEK = $1,178.57 PER CAL DAY TOTAL $1,266.42 PER CAL DAY GRRnffE 38000 Monroe St. consmujdn Indio, CA 92203 comma SIN (760) i75-7500 FAX (760)775-8229 Southern California LABOR & EQU1PNIENT RATES August 3, 2001 Cateeory Description Standard Overtime Doubletime LABOR: FOREMAN W/PU S 81 S 105 S 130 OPERATOR $ 63 $ 88 $ 109 LABORER $ 45 S 60 S 74 MASON $ 53 $ 69 $ 85 PROJECT ENGINEER WNEH. $2,450 / WEEK PROJECT MANAGER W/ VEH. S3,350 / WEEK DOZERS: CAT D4 $101 $124 $146 CAT D8L $177 $200 $222 CAT D9 $210 $232 $255 CAT D10 $290 $313 $335 LOADERS: SIDE BROOM $ 109 S 131 $153 SKIPLOADER $ 94 $1 16 $138 DEERE 710 $107 $131 $154 CAT IT28 $108 $133 $156 CAT 950 $130 $152 $175 CAT 966 $143 $165 $188 CAT 980 S 179 $202 $224 CAT 988 $213 $235 $258 ROLLERS: RUBBER -TIRED $106 $128 $150 STEEL 3-5 $ 90 $1 15 $136 STEEL 5-8 $105 $130 $151 STEEL 8-12 $110 $135 $156 STEEL VIB $123 $138 $159 CAT 534 (EQUIP ONLY) $ 60 $ 60 $ 60 BLADES: CAT 12 $112 $134 $156 CAT 140 $1 16 $138 $160 CAT 14 $138 $160 $182 CAT 16 $164 $187 $210 PAVERS: ASPHALT (2 MEN) $375 $405 $435 PICK UP MACHINE (EQUIP) $112 $112 $112 CONCRETE CURB MACHINE (I MAN) $272 $295 $317 SCRAPERS: CAT 613 $130 $145 $168 CAT 615 $150 $174 $196 CAT 623 $196 $216 $238 HYD EXCAV: CAT 330 $169 $187 $210 CAT 375 $301 $325 $347 TRUCKS: WATER TRUCK $ 85 $101 $117 TRANSPORT $105 $121 $137 FLATBED (2 TON OR LESS) $ 75 $ 95 $105 TRUCK & TRAILER $ 95 $115 $135 SUPER 10 (20-22 TON) $ 95 $1 15 $135 END DUMP $ 80 $100 $120 END DUMP (HIGH SIDE - DEMO) $ 95 $1 15 $135 ASPHALT DISTRIBUTOR $125 $140 $165 MISCELLANEOUS: 35 TON HYD. CRANE $150 $170 $185 185 CFM COMPRESSOR (equip. only) $ 30 $ 30 $ 30 LIGHT TOWER (equip. only) $ 25 $ 25 S 25 500 KW GENERATOR (equip. only) $125 $125 $125 The above prices are based upon availability of Granite owned equipment - rates include prevailing wage labor, fuel, and normal maintenance -minimum charge of 6 hours. A minimum of 8 hours will be charged for equipment worked for more than 6 hours. �- Overtime will be charged for work in excess of 8 hours per shift and Saturdays. Doubletime will be charged for work in excess of 12 hours per shift and Sundays. 60 ►� rccu iro vu�t;t Questions about your Invoice? aV`at erms: Net Upon Receipt Please contact me: Donna Peguero `'•„*.* r°""' Telephone: (925) 453-3307 r,�.,.•�^"` 's r-- 119 r•� Fax: (320 925) 453-3 C C D eMail: Dpeguero@mgrc.com McGrath RentCorpr` n billin re enc is f. gf 9u y y , , 1V ACCOUNT)j9i 0.075 $496.12 5939 < invoice batch# 1318 < print 438 SHANCH 2:; w Site location: do Jefferson & 52jid, LA OUIIVTA, CA, 92253 ** asset# units on rent (up to 6 _ 12 x 59.8 1 of 1 firs sn-1799 Invoice#: 314726 Granite Constlllction Company22701 _ m 38000 Monroe Street Invoice date: 7/24/Ol Lease#: 229324 Indio Ca 92203 P.O. #: Jefferson St Description Rental Period Charge rent 7-19-01 to 8/18/01 $415.00 Buildings & associated items Subtotal: S415.00 Tax: $31.12 Total: 4 -12 22 5 $. J431o. l0000S t?cNi14t� ►z- 11-7 PLEASE REMIT ABOVE AMOUIT WITH REMITTANCE COPY OR REFERENCE INVOICE# ABOVE Tax is charged on individual applicable items and each item's tax is rounded to the nearest cent. Tax shown is the sum of individual item taxes. Seller certifies that the above bill isjust and correct and that all applicable statutory requirements including the provisions of the Fair Labor Standard Acts of 1938 as amended have been complied with. THIS TRANSACTION IS SUBJECT TO THE TERMS AND FONDITIONS OF MCGRATH RENTCORP / OR MOBILE MODULAR MANAGEMENT CORP / OR MCGRATH-RENTELCO. Detach at perforation and return with payment FOR PROPER CREDIT, RETURN THIS PORTION WITH REMITTANCE REMITTANCE COPY LEASE NO: 1229324 AMOUNT REMITTED I INVOICE#: 314726 if different than Lease# �} INVOICE DATE: 7/24/01 invoice amount: $ 1229324 Ih-VOICE AMOUNT: $446.12 E%PLANATION:01 .............. •------- --•••••-••> Invoice# Granite Construction Company 31 %�. Thank you for doing business with Mobile Modular. We appreciate your business. jj REMIT TO: Mobile Modular M,-mt. Corp. P.O. Box #f45043 San Francisco, CA 94145-0043 I N V O I C E �RICAN FENCE COMPANY INC FENCE COMPANY 600 ANTELOPE RD. Securing America Since IW8 RRIETA, CA 92563 09) 672-4033 t E>e:,; EW E D INVOICE SIP v 7 2001 IN ACCOUNTINe SHANCH 25 ld To: GRANITE CONSTRUCTION Ship o: GRANITE CONSTRUCTION 38000 MONROE STREET JEFFERSON & AVENUE 52 INDIO, CA 92203 LA QUINTA, CA voice- Date: 09/04/01 voice # 673513 ----------------------------------------------------------------------------- quest Date Customer P.O. Ship: RVR3537--KIM LOPEZ 09/04/01 Inst: ----------------------------------------------------------------------------- Description Ext. Price ----------------------------------------------------------------------------- Work Performed 165.00 NTHLY RENTAL FROM 9/4/01-10/3/01. 2Z-y18, iy3G i0000s r' 5r"- Fr►�°i �- t N Y fa � � I i Subtotal 165.00 Amount Paid: .00 Amount Due : Thank You for Your Business! DETACH THIS PORTION AND INCLUDE WITH PAYMENT (please ncte new address) 165.00 -------------------- --------------------- Customer #: Order # Related PO: Brn/Plt Invoice # . 216225 1 995318 BL €, ' 4 s j 0307200 I 673513 U JL �7 � 4 . :Y PAY THIS INVOICE G STATEMENT WILL BE SENT Utility Services 681 S. Parker St., Suite 300 Orange, CA•92868-4719 GRANITE CONS T RUCTIOPECEIVE® IN'V010E hiG : 38000 MO NRl7. E S T IINVV ICE DATE, . INDID, CA 922-03 y FEB 26 2001 C;U` J 0 g 4: 31213 IN ACCOUNTINO 13HANCH 25 52ND AVE TRAILER SITE 52ND AVE/jEFFERSON, Corporate/Accounting (714) 881-2534 (714) 881-2544 (FAX) Customer Service/Scheduling (800) 863-2525 (714) 881-2547 (FAX) Fed. Tax ID # 33-0232309 131 04'd4 011'31 / 2001 Ui,UIN R CCIP I AREA, R.IV PROGRESS HILL FOR EQUIPMENT ON J'O6 PAST J'_1'`II.LAL RENTAL PERIOD: ',1 T Y EQUIPMENT 1Tl 0 j'l 1 i i lilt U RA 1 E EQUIPMENT CURRENTLY ON THE JUi3 01/0 1 /2001 T i-IROUGH 01131/2001 1 100 AtillP METER i--CILE 30-1.1.1. AVE �... JET DATE: 04/28/2000 SET W/O: :3/1+19931 1-610 26.00 / BARE SUPPORT POLE CGNIS TRUC t J_t`;l I`{ I R fi I L _ SET DATE. 0 4/28/200'0 SET Wr7G. S/11i"9931 1 100 AMP 24419''d DIS T PANEL MN LUG CONS T R U C T 10N I Ri-7,.IL is SET DATE: 134/28/2000 SET W/O: S/1r1ti✓31 1.IZI0 22SyIS. 143q. lcOoaV,- v'. PowE Po"2i/E4M='-r F SERVICE AGREEMENT x OR Putt: 1 0 . '%"0 0 0 0 70 00 247 00 T U T A 1_ 1 1 'C) . 10 0 LESSEE AGREES TO PROVIDE THE FOLLOWING: All ewals antler this agreement are ptil the upon receipt t orth in Rental starts immediately m ire upon delivery to Lessee '9 warehouse andshall continue until :the rental period sal IOM n this agreement has expired or until Lessee has roGlie 1. Provide Lessor with exact pole locations prior to installation and/or relocation of Lessor in writing of his intent to terminate this agreement. whichever is later. In no event shall the term of this rental agiMemer to Lessee returning equipment to Lessor's warehouse No deductions will be made for Sundays, holidays. or tim poles and hold Lessor harmless of damage to under rOUnd Utilities. 9 9 expire prior In transit: or for any period of time equipment may not be in actual use while in Lessee's possession. All transportation or truckir- 2. For poles that need to be hand set or hand pulled, there will be minimum charge charges to be paid by Lessee. of $20.00 per pole. 2. In the event any equipment is damaged or missing. Lessee shall pay to Lessor the reasonable replacement value of sai 3. Payment of all electric bills. egtdpment to be determined at the sae discretion of the Lessof, 3. Lessee shall not ublitize the leased equipment beyond its rated electrical capacity. 4. Payment for damaged or missin ui menl. g eQ P 4. Lessee shall indemnity, defend and hold harmless against al claims, demands and liabilities of every moire arising fror 5. Payment for relocating equipment. Lessee's utilization of the equipment under this agreement, unless solely caused by the negligence of the Lessor. including cast liability for injuries 6. Payment for special equipment needed for severe digging conditions. of suit, expenses and reasonable attorneys fees. This indemnification applies toctaim, demand and ocwrnin after and during the performance under this agreement and extends to claims, demands and liability lot injury contributed to t the negfigence or other misconduct of Lessee unless due to the sole negligence or misconduct of the Lessor as long as the injui LESSEE AGREES THAT is caused In part by the negligence or misconduct of Lessee or by his employees, agents or other related entities. 5. In the event of a disagreement arising out of this agreement the prevailing party will be entitled to reasonable attonney's fees Lessor shall not be responsible for power surges, loss of power, outages, shorts in line, nor t volta a or amperage amounts or capacities Lessor shall does Lessor warrant or guaran ee g not be responsible for damage to property, including but not limited to saws, hand tools, 4.40 4 s HLY CHARGES AFrEIA 6 MON'niS compressors, clocks, phone, radio, computers, copiers, etc. $20 ea, sub service po!e $10 ea. bare support poie $25 black diamond serraice $15 black diamond bare : d ,y m Payents shall be made by customer upon receipt of an invoice from w P r Rust Power Plusl reserves the right to discontinue service to any delinquent account Customer agrees to pay a PmceSsi y h fee of 1.5'of the unpaid bal4e. S� -9 Power Plus&l receive a payment on your account noted "payment in full" or a similar phrase, the payment will be applied to your account However, our processing the cayment does not relie+e you of any obligation to day remaining balances on your aLrcount. wer PoPlusl honors customers request for equipment pick up on the date the request is made. therefore, the charges for such request shall not be subiect to any proration. V-12 1ON W • p m ti Q co 6 as m a to x • - znoa H CO �LL'. to an ►�i �+i p. Cc c• cc; C= _� I-ACJ ze to co �3' V f'r► W 1--d s ca N O Q•„ a ap oiq ..a '.� O S :C (7i1 s` U ap tC m 6o eW to LLD %0 wo uo v ea eo ® m m kn� o.°r� r q0Y O to ,n ar atim m m� m m e m m _ OP �¢O2 as a .ee � H ll� C? C y � c:+ m. tw w ®sm p 1-4 + to A 1 C CC"M OO U) 0 cc O U LL1 m O O LL } a- O U) F-- LU LLI Y ar a 013 INVOICE NO: 0030974-2518-9 PAYMENT IS DUE NO LATER THAN 03/03/2001. INVOICE DATE: 02/01 /2001 . A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS" ACCOUNT NO: -,__868-0090201-251 8-4 ':rO ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND THE BOTTOM PORTION OF THIS INVOICE. WHEN MAKING PAYMENT ON MULTIPLE ACCOUNTS, PLEASE INCLUDE ALL ACCOUNT NUMBERS, AMOUNTS OF EACH PAYMENT AS WELL AS THE BOTTOM PORTION OF EACH INVOICE. MESSAGES YOU CAN NOW PAY.'YOUR BILL BY: -CREDIT CARD ON OUR. WEB SITE '.' * * *WWW.WMDESERT.COM*" OR CALL OUR CUSTOMER SERVICE DEPARTMENT FOR INFORMATION ON OUR NEW INSTA—CHECK PROGRAM!! ,f- TO ASSURE PRCNIPT PRCCESSiNG , ' CUB PAYMENT. PLEASE CETACN AT-_�FORA7.10N sc�z. ", - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _- - 1 Please check box if address is incorrect or information 6073W-8331 1 has changed, and indicate change(s) on reverse side. wnsn MwHAaEMEirr 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-21 13 FAX NUMBER: (760) 340-0417 PAGE:1 WWW.WMDESERT.COM ❑ ��, ❑ lei �� ❑ CHECK CARD USING FOR PAYMENT CARD NUMBER EXP DATE SIGNATURE I AMOUNT INVOICE DATE 02/01/2001 INVOICE NUMBER 0030974-2518 9 ACCT.a 868-0090201-2518-4 CHECK NO. I i $ PAY THIS AMOUNT 397.58 SHOW PAID AMOUNT HERE I S 25188680090201000309740000003975800000039758 5 Ilrillrlllilliiiillllliliilllillllllllllliiillllilll�lilliiill GRANITE CONSTRUCTION WASTE iMANAGENIENT OF THE DESERT 38000 MONROE ST BOX 78251 INDIO, CA 92201 PHOENIX, AZ 85062-8251 CT I IIIIN IIIII IIIII IId IIIIII IIIIII iN IIiIII IIIi 111011111 111111111111N 1111;1I11 IN WASTE MANAGEMENT OF THE DESERT 41575 ECLECTIC ST. PALM DESERT,:CA 92260 .- YWW.WMDESERT. COM PHONE NUMBER: (760) 340 2113 FAX NUMBER: (760) 340-0417 PAGE: 1 of 1 * * SERVICE PERIOD DESCRIPTION: OCT 2000 RENTAL ING DAY, AND CHRISTMAS DAY. CURRENT 30 DAYS 60 DAYS -.90 DAYS .-.. -..120 DAYS- -_150-DAYS --- -- --PAY THIS AMOUNT 325.00 $ 325.00 PAYMENT IS DUE NO LATER THAN 10/31 /2000. NVOICE NO: 2518-0009459 A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS. NVOICE DATE: 10/01 /2000 TO ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND THE BOTTOM OF THIS%CCOUNT NO: 866-88313 --1OL PLEASE NC U ERTION ALLL ACCOUNTINUMBERS, AMOUNTS OF EACHWHEN MANGENT PAYMENTUPLE ASIWE L AS THES BOTTOM PORTION OF EACH INVOICE. IIIUIIMIIIII III I�IIII IIII!Iln IIIIII III I� Ialt IIIII Il�i� JI ESSAG ES: (OU CAN NOW PAY YOUR BILL BY CREDIT CARD ON OUR WEB SITE * * * * * WWW.WMDESERT.COM * * * )R CALL OUR CUSTOMER SERVICE DEPARTMENT FOR !NFORMATION ON OUR NEW INSTA-CHECK PROGRAM!! Please cneCk box it address is incorrect or information has changed, and indicate changels) on reverse side. W. -•- WAaTsM^MAQEMSW 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-21 13 FAX NUMBER: (760) 340-0417 WWW,WMDESERT.COM ) I"'VOICE WNIEPERF (iigg) PLEASE DETACH AND RETURN BOTTOM PORTION WITH YOUR PAYMENT PAGE:1 -••El ��I U .o.. ❑ CHECK CARD USING FOR PAYMENT CARD NUMBER I EXP. DATE SIGNATURE AMOUNT INVOICE DATE 10/01 /2000 INVOICE NUMBER I 2518-00094591$ PAY THIS AMOUNT 325.00 ACCT.x 866-88313 SHOW PAID AMOUNT HERE S CHECK x 25188660088313000094590000003250000000032500 2 II I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I II GRANITE CONSTRUCTION 38000 MONROE ST INDIO, CA 92203-9500 III I I I I I I I I I I I I I I I I I I I I I I I I I I II I I I I I I I I I I I I I I I I I I I I I II I I 111 III WASTE MANAGEMENT OF THE DESERT P.O. BOX 78041 PHOENIX, AZ 85062-8041 CT 6073W-3331'0730RCN30000285 615 V-%U�z NWW.WMDESERT.COM WASTE MANAGEMENT OF THE DESERT ECLECTIC - PALMALM 9 DESERT, CA 2260 PHONE NUMBER: (760) 340-2113 FAX NUMBER: (760) 340-0417 PAGE: 1 of 1 * * * SERVICE PERIOD DESCRIPTION: NOV 2000 RENTAL * * * DATE DESCRIPTION TICKET QTY AMOUNT 866-88336 GRANITE CONSTRUCTION-SB JEFFERSON ST (� _ p IV E INDIO CA 92201 6► 1.1/01/2000 1.00 NINTHLY RENT 26 FT STORAGE BODY 1 ,�. 1 6 �QQQ 90.00 Total This Invoice Q 90.00 Balance From Previous Billing r` 253.71 Payment - Thank You IN A COUNTIN $253 .71= - Total Account Balance t3 ANCH 25 $90.00 S.-mI;Atip c�nriA��J�C to SCI(tGc 1ULIDAY6 UBSLRVLD: NLW YtAM'S DAY, MLMUKIAL DAY, JULY 4, LABOR DAY, THANKSGIVING DAY, AND CHRISTMAS DAY. CURRENT 30.00 - 30 DAYS 60 DAYS --- 90 DAYS 120 DAYS - - -150 DAYS 7 PAY TH MOUNT S 90.00 NVOICE NO: 0009902-2518-7 PAYMENT IS DUE NO LATER THAN 12/01 /2000. NVOICE DATE: 1 1 /01 /2000 A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS. %CCOUNT NO: 866-0088336-2518-2 TO ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND THE BOTTOM PORTION OF THIS INVOICE. WHEN MAKING PAYMENT ON MULTIPLE ACCOUNTS, PLEASE INCLUDE ALL ACCOUNT NUMBERS, AMOUNTS OF EACH PAYMENT AS WELL AS THE BOTTOM PORTION OF EACH INVOICE. AESSAGES: SOU CAN NOW PAY YOUR BILL BY CREDIT CARD ON OUR WEB SITE *****WWW.WMDESERT.COM***** DR CALL OUR CUSTOMER SERVICE DEPARTMENT FOR INFORMATION ON OUR NEW INSTA-CHECK PROGRAM!! y _ ASSURE'E.:7 r_=....0 ..7 =_ CP. P._1m19rERF(9/00) — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — Please check box if address is incorrect or information 6073W-8331 has changed, and indicate changels) on reverse side. lul V-Raa WASTE MANAQEMENT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-21 13 FAX NUMBER: (760) 340-0417 PAGE:1 WWW.WMDESERT.COM �l11 v CHECK CARD USING FOR PAYMENT CARD NUMBER I EXP. DATE SIGNATURE AMOUNT INVOICE DATE 11/01 /2000 INVOICE NUMBER 0009902-2518-7 ACCT.9 866-0088336-2518-2 CHECK NO. PAY THIS AMOUNT S 90.00 SHOW PAID AMOUNT HERE 5 25188660088226000099020000000900000000009000 5 IIIIIIIIIIIIIIIIIIIIIIII,IIIIilillll�llll���llllllllllllllllli r- �F.� GRANITE CONSTRUCTION WASTE MANAGEMENT OF THE DESERT 38000 MONROE ST P.O. BOX 78041 INDIO, CA 92201 PHOENIX, AZ85062-8041 UlU C'T ..........; WASTE MANAGEMENT•OF THE DESERT . 41575 ECLECTIC ST ALM DESERT,;.CA 92260 t? vv WWW.WMDESERT:COM "._PHONE NUMBER; (760) 340-2113 'FAX NUMHFR _.wn FAO-OA -7 - pnc F= * * __ _.SERVICE PERIOD- DESCRIPTION. SVC PER 11 %14 HOLIDAYS OBSERVED 'NEW YEARS DAY MEMORIAL DAY THANKSGIVING DAY AND CHRISTMAS DAY JA =� CURRENT 70. l7 .> INVOICE NO: 0028394-2518-4 PAYMENT IS DUE NO LATER THAN 12/31/2000. INVOICE DATE: 12/01 /2000 A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS. ACCOUNT NO: 868-0090226-251 8-1 A40TO ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND THE BOTTOM PORTION OF THIS INVOICE. WHEN MAKING PAYMENT ON MULTIPLE ACCOUNTS, PLEASE INCLUDE ALL ACCOUNT NUMBERS, AMOUNTS OF EACH PAYMENT AS WELL AS THE BOTTOM PORTION OF EACH INVOICE. MESSAGES: - -- DUE TO INCREASED FUEL COSTS THIS AND CERTAIN SUBSEQUENT INVOICES WILL INCLUDE A TEMPORARY FUEL SURCHARGE. AS ALWAYS, WE THANK YOU FOR YOUR CONTINUED BUSINESS. TO ASSURE P;CyI P- PR L:C E S3; NG `.F -(C'(. d UR PAE?=.E � I T. PL.ac D;C+- P_ �F IRAT: C-N _E .. —. ^ - 1 Please check box if address is incorrect or information 6073W-8331 J has changed, and indicate change(sl on reverse side. t. WASTE MANAGEMENT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-2113 FAX NUMBER: (760) 340-0417 PAGE:1 WWW.WMDESERT.COM Ic>cyF (9100) I❑ J ►qua• ESS CHECK CARD USING FOR PAYMENT CARD NUMBER EXP. DATE SIGNATURE AMOUNT INVOICE DATE 12/01 /2000 INVOICE NUMBER 0028394-2518-4 ACCT.x 868-0090226-2518-1 CHECK NO. $ PAY THIS AMOUNT 70.17 SHOW PAID AMOUNT HERE S 25188680090226000283940000000701700000007017 0 GRANITE CONSTRUCTION 38000 MONROE ST INDIO, CA 92201 IIIII I�IIIII IIIIIIIII IIIIIIIII IIIIII II II II IIIIII II III111111111 WASTE MANAGEMENT OF THE DESERT BOX 78251 PHOENIX, AZ 85062-8251 U� CT 111111111111111111111IN111111111IN1111iIIW11111IN11111111111011111111 WASTE MANAGEMENT OF THE DESERT 41575 ECLECTIC ST. qa'*A*�wPALM DESERT, CA 92260 nunlllr co. I-7t;n1 0An_71 1 `lGAY MI IMRFR' (7RO) 340-0417 -PAGE: 1 of 1 IVVVV.VVIVIUCJCrtl.�.vw•-� •- ••• --• -- — - - * * * SERVICE PERIOD DESCRIPTION: SVC PER 1 1 /14-12/11 DATE DESCRIPTION TICKET QTY AMOUNT 868-90669 GRANITE CONSTRUCTION -PO JEFFERSON ST LA QUINTA CA 92253 1.0'.0 POL STD UNIT SERVICE FEE MNTH 58.00 1.00 POL RENTAL CHARGE MNTHLY 10.00 1.00 FUEL SURCHJI�RGE 1.39 CALIFORNIA STATE SALES TAX .78 Total This Invoice 70.17 Balance From Previous Billing 68.78 Payment - Thank You $6.8.78 Total Account Balance $70.17 a Ge7. o�ccr fl( gP►4c45 rN fli_1 CT11A A.0 M A V IOLIDAYS'OBSERVED: NtW CURRENT 30 DAYS 60 DAYS 90 DAYS ' 11.20 DAYS 150` DAYS pAY THIS; -AMOUNT, '0.17 5 701;7 NVOICE NO: 0028462-2518-9 PAYMENT IS DUE NO LATER THAN 1213112000. NVOICE DATE: 12/01 /2000 A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS. ACCOUNT N0: 868-0090669-2518-2 1h ' ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND HE BOTTOM PORTION OF THIS INVOICE. WHEN MAKING PAYMENT ON MULTIPLE ACCOUNTS, PLEASE INCLUDE ALL ACCOUNT NUMBERS, AMOUNTS OF EACH PAYMENT AS WELL AS THE BOTTOM PORTION OF EACH INVOICE. JIESSAGES: SUE TO INCREASED FUEL COSTS THIS AND CERTAIN SUBSEQUENT INVOICES WILL INCLUDE A TEMPORARY FUEL SURCHARGE. AS ALWAYS, WE THANK YOU FOR YOUR CONTINUED BUSINESS. WMBPE.. (C - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I Please check box if address is incorrect or information 6073W-8331 I has changed, and indicate changeis) an reverse side. w WASTE MANAGEMENT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-21 13 FAX NUMBER: (760) 340-0417 PAGE:1 WWW-WMDESERT.COM ElIws�' ,,,,,a„� E,� En CHECK CARD USING FOR PAYMENT CARD NUMBER EXP.DATE SIGNATURE AMOUNT INVOICE DATE 12/01 /2000 INVOICE NUMBER 0028462-2518-9 ACCT# 868-0090669-2518-2 CHECK NO. $ PAY THIS AMOUNT 70.17 SHOW PAID AMOUNT HERE 1 $ 251886800906690002846200000007011700000007017 6 IIII11111111111IIIilIllII1111111111111111IIII.II11111111III.II II111.1III.ilI111IIIIIII111.1III111IIIllrll�IIII1111111111IIII GRANITE CONSTRUCTION WASTE MANAGEMENT OF THE DESERT 38000 MONROE ST BOX 78251 INDIO, CA 92203-9500 PHOENIX, AZ 85062-8251 CT I 111111111111 It lip 111111111111111111111nil 11111 Hilltill 111111 6073 W-8331 '08W 1 OM6UX001061 -V-wu�- WWW.WMDESERT.COM WASTE MANAGEMENT OF THE DESERT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBER (7Finl 1 ,� GAx nll InnQCD. 1-1 - � • • -� • -, - _ " vvf J'FV-V4 I / rAk3t: -1 OT l * SERVICE PERIOD DESCRIPTION: DECn.2000 SERVICE * * * DATE DESCRIPTION "'+ ,ti ICKET QTY AMOUNT . , . 861-91293 GRANITE CONSTRUCTION fvijV r JFFn>,vGT Z©Q�j' e LA QUINTA CA 92253 � �AGCO 1.00 COMMRCL DUMP SURCHARGE 13HgAJ i A/%/,/r" 1.00 COMMRCL LA QUINTA AB939 1'-147 2 17 .47 1.00 2 YD F/L TRASH CONTAINER . 48.88 34 Total This Invoice Balance From Previous Billing 69:69,,, -69.69 Total Account Balance $139.38 Wit} ���ps rye, A ��( YA► Hnl IfIAVR nRCFRVFn• NF1A/NEAR• nV Ker:hA MIIa A -- —• • • —•• —• • • uvwn(/iL u JULY 4, L UK UA I Hjk ,ING DAY, AND CHRISTMAS DAY I CURRENT 30 DAYS 60 DAYS 90 DAYS 120 DAYS 150 DAYS PAY THIS' AMOUNT 139.38 S Y3'9.38'1 INVOICE NO: 0134832-2518-4 PAYMENT IS DUE NO LATER THAN 12/31 /2000. INVOICE DATE: 12/01/2000 A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS. ACCOUNT NO: 861-0091293-2518-0(gb1 rO ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND THE BOTTOM PORTION OF THIS INVOICE. WHEN MAKING PAYMENT ON MULTIPLE ACCOUNTS. PLEASE INCLUDE ALL ACCOUNT NUMBERS, AMOUNTS OF EACH PAYMENT AS WELL AS THE BOTTOM PORTION OF EACH INVOICE_ MESSAGES: YOU CAN NOW PAY YOUR BILL BY CREDIT CARD ON OUR WEB SITE *****WWW.WMDESERT.COM***** OR CALL OUR CUSTOMER SERVICE DEPARTMENT FOR INFORMATION ON OUR NEW INSTA-CHECK PROGRAM!! I Please check box if address is incorrect or information — — — — — — — — — - I has changed, and indicate changelsl on reverse side. 6073W-3331 limmliml WASTE MANAGEMENT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-21 1 3 FAX NUMBER: (760) 340-041 7 WWW.WMDESERT.COM PAGER Wtd3=ER= (9/17) ❑ 25188610091293001348320000001393800000013938 9 II��II�I�I�II�r�IIIrIIIi�IIIII�I�III�I�I��rIIIII�IrIllllllr�ll _ GRANITE CONSTRUCTION WASTE MANAGEMENT OF THE DESERT 38000 MONROE ST BOX 78251 ATTN : CAROLYN A/P PHOENIX, AZ 85062-8251 INDIO, CA 92201 019 CT 1111IINIINIIfit I1IIIIIIHIIII IIIIINIIINIIIINIINIIIIIINIIIINNINIII uwrn VWW.WMDESERT.COM WASTE MANAGEMENT OF THE DESERT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBER: (760) 340-21 13 FAX NUMBER: (760) 340-0417 PAGE: 1 of 1 * * * SERVICE PERIOD DESCRIPTION: DEC 2000 SERVICE * * * DATE DESCRIPTION TICKET QTY AMOUNT 861-91579 GRANITE CONSTRUCTION JEFFERSON ST Agogjvej5 LA QUINTA CA 92253 1.00 COMMRCL DUMP SURCHARGE NOV 2 8 2000 3 3. 6 9 1.00 COMMRCL LA QUINTA AB939 7.76 1.00 4 YD F/L TRASH CONTAINER IN ACCOU VTINQ 82.96 . Total This Invoice 8H4NC 25 1214.41. Balance From Previous Billing 409.25 Payment - Thank You $284.84- Total Account Balance $24882 "U:�(�� �I DU C p-UJN PC R. OLIDAYS OBSERVED: NEW YEAR'S DA , E Y, JULY 4, LABOR DAY, TH GIVING D , AND CHRISTMAS DAY. r CURT 30 DAYS 60 DAYS 90 DAYS 120 DAYS 150 DAYS PAY THIS AMOUNT 4' .82 S ' .248.82 JVOICE NO: 0135038-2518-7 PAYMENT IS DUE NO LATER THAN 12/31 /2000. JVOICE DATE: 12/01 /2000 A LATE FEE WILL BE ASSESSED FOR ANY BALANCE OVER 60 DAYS. CCOUNT NO: 861-0091 579-2518-2 TO ENSURE PROPER CREDIT, PLEASE INCLUDE YOUR ACCOUNT NUMBER ON YOUR CHECK AND THE BOTTOM PORTION OF THIS INVOICE. WHEN MAKING PAYMENT ON MULTIPLE ACCOUNTS, PLEASE INCLUDE ALL ACCOUNT NUMBERS, AMOUNTS OF EACH PAYMENT AS WELL AS THE BOTTOM PORTION OF EACH INVOICE. IESSAGES: OU CAN NOW PAY YOUR BILL BY CREDIT CARD ON OUR WEB SITE * * * * * WWW.WMDESERT.COM * R CALL OUR CUSTOMER SERVICE DEPARTMENT FOR INFORMATION ON OUR NEW INSTA-CHECK PROGRAMO please check box if address is incorrect or information 6073W-633'I ias changed, and indicate changes) on reverse side. E w WASTE MANAGEMENT 41575 ECLECTIC ST. PALM DESERT, CA 92260 PHONE NUMBERS: (760) 340-2113 FAX NUMBER: (760) 340-0417 WWW.WMDESERT.COM PAGE:1 :- ^ vrsArs:'y+�t' "Z"15S CHECK CARD USING FOR PAYMENT CARD NUMBER EXP DATE SIGNATURE AMOUNT INVOICE DATE 12/01/'2000 INVOICE NUMBER 0135038-2518-7 ACCT.N 861-0091579-2518-2 CHECK NO. $ PAY THIS AMOUNT 248.82 SHOW PAID AMOUNT HERE $ 25188610091579001350380000002488200000024882 4 - I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I IIIIIII II IIII 1111 IIIIIII 1111111111 II IIIIIIIIIIIIIIIII IIII IIIII - GRANITE CONSTRUCTION WASTE MANAGEMENT OF THE DESERT 38000 MONROE ST BOX 78251 INDIO, CA 92203-9500 PHOENIX, AZ 85062-8251 ON CT iillllllllilli!III�IINIIIIIiINIIIIIIIIN1111111I11111IHill INIfill IIIII'll III 6073W-8331*no t 19 A TN9nnOA-C McKesson Water Products Your next delivery clays: 11/09/00 & 11/27/00 Your Sales Representative: ANTHONY Previous Balance _ 4.00 Service Address SE CORNER OF 52ND & JEFFERSON Credits 10/24 Check Payment EW9 04392] Current Charges 10/02 5 Crystal Fresh- 5 Gallon Bottle @ 5.67 [Refll:0000] 10/12 1 Crystal Fresh- 5 Gallon Bottle @ 5.67 [Ref#:3765] 10/26 1 Rent - Twin Temp Dispenser 10/26 No Delivery - Full Bottles On Hand Amount Due Total Bottles on Hand 5-Gallon Bottle(s): 6 Sparkletts now delivers personal -size .5-, 1.0- and 1.5-Itr bottles with the convenient Sport Top. Take 'em anywhere. Only ,$11.95 per case. To order, leave your Route Sales Representative a note on your next delivery day. 4. 00- 28. 35 5. 67 4.00 .00 38.02 l% a Fleas L i re to Serve Yo t! Please check the reverse side for billing in formation and nutrition facts you should know. For Customer Service: 1-800-4-WATERS (800) 492-8377 ........................................................................................................................................................................................................................................................... . Send this form with Make Check Payable To: , Sparkletts your payment. ❑ Address change. INVOICE# 5 9 7 2 0 9 7- 6 4 Please check box and see reverse. AccountNo; McKesson Water Products Co. This address must � 421-499-252 P.O. BOX 7126 snow through window Pasadena, CA 91109-7126 of f epiy envelope. Current Charges: - 38.02 3 2 4 5- 01- 0 9 8 C 3 M Payment Due By: 11 / 13 / 0 0 GRANITE CONSTRUCTION Amount Due:, 38. 02 JOB #225418 38000 MONROE ST blc � nets I ND I O, CA 9 2 2 0 3- 9 5 0 0 Amount Paid: $ 1 1421499252597209764000003802614214992525972097640000038026� 2 1 r ST R(CT IMPERIAL IRRIGATION DISTRICT PO Box 937 •333 EAST BARIONI BLVD • IMPERIAL CA 92251-093 7 800.303.7756 760.355.1112 FAX 760.339.9471 Winterhaven/Bard 760.572.5455 Website www.iid.com IMPORTANT: BILLS ARE DUE AND PAYABLE UPON RECEIPT. AVOID COLLECTION PROCEEDINGS BY PAYING IMMEDIATELY. ELECTRIC BILL / yGg, �Iel Invoice #: 83144284 RE C F—i V E rD See billing information on reverse side )TAL DUE 109.28 )NTRACT ACCT NO 50140176 ECTRIC RATE COMM—SMALL JMBER OF DAYS 033 CUSTOMER N4 . t E SEP 13 2000 SERVICE LOCA�bON BILLING PERIOD IN ACCOUNTINO- PREVIOUS BALANC63HANCH 25 METER NUMBER PREVIOUS METER READING CURRENT METER READING MULTIPLIER KWH USED CUSTOMER CHARGE HORSEPOWER GENERATION CHARGE TRANSMISSION CHARGE DISTRIBUTION CHARGE ENERGY COST ADJUSTMENT FACTOR PUBLIC BENEFITS CHARGE CALIFORNIA ENERGY SURCHARGE PREV BAL 0.00 CURB CHRG 109.28 TOTAL DUE 109.28 GRANITE CONSTRUCTION CO 80111 AVE 52 LA QUINTA, CA 08/04/2000 to 09/05/2000 0.00 AS1 134-2465 (IID-1 134-65053) 283 393 10 1,100 IC 0.0084 0.0285 0.0002 < < < DUE BY: 10/02/2000 > > > DEDUCT PAYMENTS MADE AFTER THIS DATE 09/11/2000 CONSUMPTION HISTORY ` NO KWH AVG DAILY DAYS BILLED USAGE THIS MONTH 033 1,100 33.33 LAST MONTH 029 1,130 38.97 5LI,T4i����� i PAGE 1 OF 1 4.00 46.40 11.14 35.26 9.24 3.02 0.22 109.28 022 � Telephone Number 760 771-2364 veraon Account Number 01254311898504431 O L4 6 PAGE 1 OF Statement Ending Nov 10 2000 How to Reach Us ACCOUNT SUMMARY GRANITE CONSTRUCTION Verizon billing, Previous char es questions >; A LSO% Late Payment 1 800 3444831 Amount of last bill $ 516.01 Charge applies Payment received on Nov 06. CR 516.01 (Dec 11, 2000). Balance S .00 Verizon repair Current charges call Verizon basic charges $ 169.01 Customer Care MCI WorldCom basic services 109.47 1 800 483-2000 Total current charges = S 278.48.: Centro Hispano Total.amount 27$.48 de Verizon Due'date"forcurrentchar only Dec'4,1000 8 1 --Para -asistencia-en- espanol-ordenes, cobros o servicio de reparation �� !� / G • /Qaoa ti I{ee� A Visit our website at: www.verizon.com '.��.—.—.-------- —----- —----- ------- ------------- Send ♦ _ Detach and return with your check payable to Verizon. 212•HBRDAI 00030767 F--OW.37561 01-CA 2.543 TELEPHONE NUMBER NON -PUBLISHED 7607712364 200004W ACCOUNT NUMBER 012543118985044310 Current Char¢es Tyne Pasr T?nP Trost Tl„a e­. 1D-.A i Dec 4, 2000 $ .00 $ 278.48 DC 1110:28.826.151463 2 AT 0.481 11/19/00 Change of GRANITE CONSTRUCTION address form 38000 M O N R O E S T on back. Verizon California INDI0 CA 92203-9500 P.O. Box30001 IIJJJLIILrJIIIJLIIrIIrJIrILrllrl Inslewood, CA 90313-0001 01 2543 1189850443 10N00000000000 00000027848 04 1 / 5/ /& /C- VALLEY OFFICE EQUIPMENT, INC. 36-665 Bankside Drive #B Cathedral City, CA 92234 Cost Per Copy INVOICE i Bill To: GRANI Granite Construction 38000 Monroe Street Indio, CA 92201 Attn: Accounts Payable' Make: Sharp Model: SF2020 D ll Invoice Number: 15325 Invoice Date: 1/26/2001 Terms: Net 30 Ship To: Granite Construction 38000 Monroe Street Indio, CA 92201 Susan' ( 760 ) 775-7500 Serial Number: 76610181 Machine ID: 571 12/19/00 1 1/18/01 1 2.1 2K 41,500 1 2,000 1 43,500 1 41,500 0 $0.0201 1 $0.00 $40.20 Contract Inclusions & Exclusions Note: 2,000 copies per month. Cost Per Copy or Rental Agreement ' Sharp ' SF2020 Effective Billing Dates Are From 12/19/2000 To 1/18/2001 From Starting Meter Reading 41,500 To Ending Meter Reading 43,500 The Total Invoice Price Is $42.01 Including Sales Tax ( If Applicable ) Basic Copies Allowable: 2,000 Basic Contract Price: $40.20 Total Copies Produced: Copies Over Allowable @ .0201: $0.00 Copies Over Allowable: 0 Sub Total: $40.20 CPC Rate Over Allowable: 0.0201 Applicable Sales Tax: $1.81 Telephone: ( 760 ) 321-1560 Delivery & Installation: $0.00 Facsimile: (760) 321-5907 Total Amount Due: $42.01 Please Pay This Amount: $42.01 This Invoice Is Due and Payable By 2/25/2001 The customer guarantees payment within the specified terms and agrees to reimburse seller for all expenses incurred in collecting the amount o this invoice. A service charge of 1.5 % per month will be added to all past due amounts. Thank You For Choosing VALLEY OFFICE EQUIPMENT, INC. . . _ ��� L4 R. A. E. COM P.O. Box 2254 Palm Desert, California 92261 (619) 346-1111 NO. 3017 REC-EiVED INVOICE S E P 15 2000 CUSTOMER CUSTOMER NUMBER A Granite Construction U�� IN CCO INC STREET 8HANCH. 25 38000 Monroe Street CITY Indio, C�: 9 TSTATE ZIP 203 ) PHONE NO. I DATE OF INVOICE DATE OF I REPAIR 775-7500 9-6-00 Sale mate: 9-5-00 WORK RENDERED: Equipment Sale Work Order #4562 Thank you! UTY. PART* / DESCRIPTION UNIT PRICE EXTEN00- GTX Portable Radio w/Charger 525.00 11050.00 WPNN4013A PatiCery 100.00 cosi. TynF or abi.. or SL amount_ L4 DO " -kVVc TERMS: NET 15 DAYS FROM EIFNOT PAID W17HIN 15 DAYS, SUBJECT TO FINANCE CHARGE OF 1.5% PER MONTH (ANNUAL PERCENT— AGE RATE 18%). HAv R I ING 025 PARTS TOTAL TAX SUB TOTAL TECH LABOR INSTAL LABOR TOTAL AMOUNT 4 - Invoice THE J.V. LAND CLEARING CO.,INC .207 EAST ARROW HWY ISAN DIMAS, CA 91773 Phone: 909-592-2811 Fax 909-592-5179 Invoice Number: ***BALANCE DUE*** Invoice Date: RECEIVED J Dec 31, 2001 FEg 1 2002 Sold To: Granite Construction Company CONTR6CT� 38000 Monroe Street Indio, CA 92203 Customer ID Job Location Payment Terms Granite Jefferson Street _ Due Date _ ----- ------ i � I 1/20/02 - Quantity Unit Price Extension Subcontract No. 225418PS 1.00 Item 2 - Clearinq & Grubbinq 1.00 Change Order No. 1 - Clearing 1.00 J.V. Invoice No. 11.06-00 1470 1.00 J.V. Invoice No. 11.07-00 1470 -1.00 *** BACKCHARGE *** (Damage?) -1.00 *** BACKCHARGE *** (missed clearing?) -1.00 Amount received as of 12/31/01 I 28, 800.00 1, 325.00 2,746.70 1,747.26 1,149.00 j 2,014.41 25, 963.50 .I 28,800.00 1,32S.00 2,746.70 1, 747.26 -1,149.CC -2,014.41 -2S,963.50 Jnt'i 3 0 2002 BRANCH 2250 Total Invoice Amount TOTAL DUE 5, 492.05 5,492.05 U r� �4 of9 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE:October 1, 2002 ITEM TITLE: Acceptance of Project No. 98-19 A & B, Village Commercial, Phase VI Cove Improvements, Prototypical Street Improvements (Calle Estado) BUSINESS SESSION: CONSENT CALENDAR: I STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: Accept Project No. 98-19 A & B, Village Commercial, Phase VI Cove Improvements, Prototypical Street Improvements (Calle Estado), as complete; and Authorize the City Clerk to file a Notice of Completion with the office of the County Recorder; and Authorize staff to release securities in lieu of retention held in escrow for this project, 35 days from the date of recording the Notice of Completion. UtRiOMA ►l' • The following illustrates the approved project funding, their sources and amounts: Redevelopment Agency Project Area No. 1 CIP Fund $5,065,800 Coachella Valley Water District $1,548,941 Community Development Block Grant $291,448 Assessment District 2000-1 $1,273,681 Village Parking District $29,236 Total $ 8, 209,106 The following table represents the approved project budget: Construction $6,894,806 Inspection/Testing/Survey $447,728 Construction Management $577,714 Administration $288,858 Total $8,209,106 f None. This project was originally bid utilizing prevailing wage requirements. On June 20, 2000, the City Council awarded a contract to Granite Construction Company in the amount of $4,425,431 to construct improvements within Assessment District 2000-1, Project No. 98-19 A/B and Prototypical Street. The Contractor was issued the Notice to Proceed, which specified to commence work on or before October 4, 2000. All work specified within the contract was to be completed within 200 consecutive calendar days thereafter resulting in a completion date of April 21, 2001. The following table represents project construction expenditures and reimbursements: Original Contract Approved Contract Change Orders 1-51 Backcharges for extra survey & testing Liquidated Damages (100 days late completion) CVWD reimbursements $4,425,431 $625,844 ($66,260) ($ 50, 000) Total $4,935,015 ($701,362) Revised Total $4,233,653 Therefore, adequate funding exists within the approved project budget to accept the improvements and complete this contract. =11 INCIRWAYI W 1. A. Accept Project No. 98-19 A & B, Village Commercial, Phase VI Cove Improvements, Prototypical Street Improvements (Calle Estado), as complete; and B. Authorize the City Clerk to file a Notice of Completion with the office of the County Recorder; and C. Authorize staff to release securities in lieu of retention held in escrow for this project, 35 days from the date of recording the Notice of Completion; or TAMDEMCOUNCIL\2002\021001 a.wpd 2. Do not accept Project No. 98-19 A & B, Village Commercial, Phase VI Cove Improvements, Prototypical Street Improvements (Calle Estado); or 3. Provide staff with alternative direction. Respectfully submitted, J-o4tAhny R. nas n, P.E. Public Works Director/City Engineer Approved for submission by: Thomas P. Genovese, Executive Director TAPWDEPT\COUNCIL\2002\021001 a.wpd AGENDA CATEGORY: BUSINESS SESSION: COUNCIL/RDA MEETING DATE: October 1, 2002 CONSENT CALENDAR: (O ITEMTITLE; Acceptance of Project No. 98-19C, STUDY SESSION: Westward Ho, Assessment District No. 2000-1 PUBLIC HEARING: 9YA UTIVI 1 _ s] 0 1 Appropriate $146,116.00, from the Infrastructure Fund Reserves Account (No. 225- 000-300-290) to the project budget; and Accept Project No. 98-19C, Westward Ho, Assessment District No. 2000-1, as complete; and Authorize the City Clerk to file a Notice of Completion with the office of the County Recorder; and Authorize staff to release securities in lieu of retention held in escrow for this project 35 days from the date of recording the Notice of Completion. The following represents the project budget and funding sources: RDA Project Area No. 2 $1 ,482, 560 CVWD $160,965 Assessment District No. 2000-1 $596,098 TOTAL FUNDING: $2,239,623 The following represents a summary of the project construction budget: Design: $235,096 Survey/Testing/Inspection: $182,199 Construction: $1,704,780 Reimburse General Fund - Personnel: $117,548 Total Budget Amount: $2,239,623 TAPWDEPT\C0UNCIL\2002\021001 gRDA.wpd The following table represents construction expenditures: Base Construction Contract Amount: Approved Contract Change Order Nos. 1-26: Additional quantities street & storm drain improvements: Additional quantities sewer improvements: Revised Contract Total: Less CVWD reimbursements: Final Contract Amount: Approved Construction Budget Amount: Funding Shortfall $1,411,674 $316,549 $240,355 $13,400 $1,981,978 ($131,082) $1,850,896 ($1,704,780) $146,116 Therefore a funding shortfall exists, due to additional quantities installed greater than the estimated quantities. Staff recommends an appropriation from the Infrastructure Fund Reserves account (No. 225-000-300-290) in the amount of $146,116.00. Adequate funding is available within the Infrastructure Fund to support staff's recommendation. 11 ' •u&-I None. On June 20, 2000, the City Council awarded a contract to construct the Phase IV, Area C, Westward Ho - Assessment District No. 2000-1 Improvement project to Granite Construction Company in the amount of $1,41 1 ,674.00. The Contractor was issued a Notice to Proceed with a starting date of October 4, 2000. The contract allowed for 180 consecutive calendar days to which an additional 103 days were added by way of contract change orders. Additionally, three calendar days were added as a result of weather delays resulting in a final contract time of 286 days. The contractor completed all work by August 3, 2001, which was within the final contract time. The City's contract Construction Manager, Tom Berg, as well as City staff have reviewed all improvements installed and find the work to be in compliance with contract plans and specifications. The Contractor has satisfied all terms and conditions of the contract and the work is deemed to be 100% complete. The Contractor's warranty for workmanship and materials will remain in place for a period of one year from the date of recordation of the Notice of Completion. bto2 TA WDEMCOUNCIL\2002\021001g.wpd The alternatives available include: 1 . Appropriate $146,116.00, from the Infrastructure Fund Reserves Account (No. 225-000-300-290) to the project budget, and • Accept Project No. 98-19C, Westward Ho, Assessment District 2000-1, as complete, and • Authorize the City Clerk to file a Notice of Completion with the office of the County Recorder, and • Authorize staff to release securities in lieu of retention held in escrow for this project, 35 days from the date of recording the Notice of Completion, or 2. Do not accept Project No. 98-19C, Westward Ho, Assessment District 2000-1, as complete, or 3. Provide staff with alternative direction. Respectfully submitted, Jimothy R. onas n, P. E. Public Works Director/City Engineer Approved for submission by: Thomas P. Genovese, Executive Director TA WDEMCOUNCIU2002\021001gRDA.wpd vU3 COUNCIL/RDA MEETING DATE: September 13, 2001 ITEM TITLE: Consideration of an Appropriation of up to $75,000 from Project Area No. 1 Low Mod Income Housing Affordable Fund to Acquire a Single Family Home Located at 52-890 Avenida Herrera RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve the acquisition of the property located at 52-890 Avenida Herrera (the "Property"), authorize the appropriation of funds from the Project Area No. 1 Low Mod Housing Fund in an amount not to exceed $75,000 and authorize Rosenow Spevacek Group to act on the Agency's behalf at the sale. •P�'� The purchase of this Property, at the Trustee's Sale, will require an expenditure from the Project Area No. 1 Low Mod Housing Fund in an amount not to exceed $75,000. Adequate funds are available for the appropriation and subsequent expenditure. A Notice of Trustee's Sale has been received notifying the Agency that on October 15, 2002, a single family home located at 52-890 Avenida Herrera will be sold at auction. This house was originally sold in August 2000, with a second trust deed amount of $60,000 to a low income household; this unit was part of the Building Horizons Program. The current outstanding loan balance of the first trust deed is anticipated to be $75,000. This figure plus the second trust deed amount of $60,000 represents a total of $135,000. In order to protect the Agency's second trust deed investment of $60,000, the Agency would have to purchase the Property. This Property is subject to public bid and will be sold to the highest bidder. If the Agency does not elect to purchase the Property, then the low income affordability covenant would be extinguished. If the Agency is not the successful bidder, any amount less than $135,000 being offered for the Property will cause a loss of the Agency's second trust deed and a loss of a qualifying unit for its inclusionary housing requirement. G:\WPDOCS\CC Stf Rpts\52890Herrera.wpd I 4 1 The alternatives available to the Redevelopment Agency include: 1. Approve the acquisition of the property located at 52-890 Avenida Herrera, authorize the appropriation of $75,000 from the Project Area No. 1 Low Mod Income Housing Funds (245-000-300-290) and authorize Rosenow Spevacek Group to act on the Agency's behalf at the sale; or 2. Do not approve the acquisition of the property located at 52-890 Avenida Herrera, nor authorize the appropriation of $75,000 from the Project Area No. 1 Low Mod Income Housing Funds (245-000-300-290) and do not authorize Rosenow Spevacek Group to act on the Agency's behalf at the sale; or 3. Provide staff with alternative direction. Respectfully submitted, Fry "He�man ommunity Development Director Approved for submission by: Thomas P. Genovese, Executive Director Attachment: Notice of Trustee Sale G:\WPDOCS\CC Stf Rpts\52890Herrera.wpd