Landmark & National City Golf/Golf Carts 07
National CIty.
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Al!reement
This Agreement ("Agreement"), dated and effective as of the J<:{Ih day of
N.QJ~4lll:;t>f ' 200-.:r is entered into between National City Golf Finance, a division of
National City Commercial Capital Company, LLC ("National City"), the City of La
Quinta, a California municipal corporation and charter city ("City of La Quinta"), and
Landmark Golf Management, LLC ("Landmark").
WHEREAS National City and Landmark have entered into that certain Master
Lease Agreement dated October 28, 2004, and all schedules entered into thereto (the
Master Lease and all schedules are collectively referred to herein as the "Lease")
whereby National City has financed for Landmark certain personal property and
equipment that is or will be located at the premises of the City of La Quinta
("Equipment"); and
WHEREAS National City and the City of La Quinta wish to provide a mechanism
for the City of La Quinta and National City to enter a New Lease (defined below) for the
possible continued use of such Equipment by the City of La Quinta in the event of a
default by Landmark under the Lease; and
WHEREAS the City of La Quinta and Landmark agree that if the City of La
Quinta does not enter a New Lease (defined below) to assume the obligations under the
Lease, then, subject to the terms and conditions ofthis Agreement, National City shall be
permitted to remove the Equipment from the City of La Quinta's premises or take such
other action as provided herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration received, and with the intent to be legally bound, the
parties agree as follows:
If an event of an uncured default occurs under the Lease and if National City
elects to exercise its remedies under the Lease which, among other remedies, provide for
the repossession of the Equipment, then:
I. National City shall, within ten (10) days of such uncured default, notify the City of La
Quinta in writing of such default, specifying the nature of the default, the Equipment
involved and any monetary obligations due by Landmark under the Lease. The City
of La Quinta shall have ten (10) business days from the date of such notice ("Notice
Date") to notify National City in writing of its interest in assuming the obligations of
Landmark with respect to the Lease and the Equipment subject to the Lease by
entering into a new lease agreement with National City on such terms and conditions
(including, if agreed by the parties, the remedy of any and all defaults by Landmark
applicable to such Lease and such Equipment) as the parties may agree on, as more
fully described in Paragraph 2 ofthi~ Agreement.
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2. If the City of La Quinta timely notifies National City of its interest in assuming the
obligations of Landmark under the Lease, then National City and the City of La
Quinta shall attempt to negotiate and enter a new lease agreement ("New Lease") on
terms and conditions that are acceptable to National City and the City of La Quinta,
each in their own sole and absolute discretion, with respect to such Lease obligations.
The New Lease shall be prepared and entered into within thirty (30) days of the date
that the City of La Quinta timely notifies National City. National City understands
that the La Quinta City Council must approve any such New Lease and has legislative
discretion to approve or reject such new lease. Upon the full execution of the New
Lease, the City of La Quinta shall remit its payments for the Equipment directly to
National City so long as National City complies with the terms and conditions of the
New Lease and National City shall permit the City of La Quinta the continued use of
the Equipment free from any claim by National City so long as the City of La Quinta
complies with the terms and conditions of the New Lease. The parties agree that
nothing in this provision or this Agreement constitutes an agreement to agree or an
agreement to enter a New Lease. Rather the parties desire to mutually covenant to
negotiate in good faith to reach agreement on a New Lease subject to, and in the
marmer provided in, this paragraph. If the time period in this paragraph ends without
the full execution of a New Lease then the parties' obligations under this paragraph
shall automatically cease, in which case National City shall have the right to take the
actions provided in Paragraph 3.
3. If the City of La Quinta (a) notifies National City that its does not desire to assume
Landmark's obligations with respect to the Lease and the Equipment, (b) fails to
timely communicate its decision to National City in the ten (10) business day time
period referred to in Paragraph I or (3) following the procedure established in
Paragraph 2, fails to reach some other agreement with National City with respect to
the continued use or other disposition of such Equipment within the thirty (30)
calendar day time period referred to in Paragraph 2 above, then, subject to the terms
and conditions of this Paragraph 3, National City shall be permitted to: (i)
immediately, upon notice as provided below, remove the Equipment from the City of
La Quinta' premises; or (ii) take such other action with respect to the Equipment as
may be permitted by the Lease or by applicable law. Subject to the terms and
conditions contained in this Agreement, the City of La Quinta and Landmark
expressly agree and acknowledge that National City shall have the right to enter the
premises of the City of La Quinta to repossess the Equipment. In no event shall
Landmark be released of its obligations under the Lease nor will the City of La
Quinta be liable for any of Landmark's obligations. The following conditions apply to
National City's entry onto the premises.
3.1. Indemnity: National City shall protect, defend, indemnify and hold
harmless the City of La Quinta and its respective officers, officials, members, employees,
agents, and representatives, and each of them, jointly and severally, against and from any
and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities,
at law or in equity, of every kind or nature whatsoever related to National City's exercise
of its rights hereunder (including attorneys' fees and expert witness fees) including,
without limitation, injury to or death of any person or persons and damage to or
destruction of any property, threatened, brought or instituted ("Claims"), arising out of or
in any mauner directly connected with the entry upon the premises by National City or
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any of its employees, agents, independent contractors, consultants, officers or directors.
The City of La Quinta shall have sole discretion in selecting its defense counsel.
3.2. Release: National City represents that it accepts the premises "AS
IS" and in the condition thereof and fully assumes any and all risks incidental to entry.
3.3. Notice ofEntrv: National City shall provide at least 48 hours written
notice to the City of La Quinta prior to entering the premises. The City of La Quinta
shall have the right to have a representative present at the time National City enters the
premises.
4. During the periods in Paragraphs I and 2, National City shall not exercise its right to
reposes the Equipment but all rent or monetary payments due to National City under
the Lease shall accrue as permitted by the Lease, subject to any modification as may
be agreed between National City and the City of La Quinta in a New Lease.
5. This Agreement does not constitute the City of La Quinta's assumption of any of
Landmark's rights or obligations under the Lease.
6. This Agreement shall not be binding or consummated until it is signed by both
parties but may be signed in counterparts by facsimile signature. This Agreement
shall be governed by the internal laws of the State of California and any question
arising hereunder shall be construed or determined according to such law.
7. For purpose of providing notice in this Agreement the following addresses shall be
used unless a party notifies the other parties in writing that a different address should
be used:
To City of La Quinta: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Manager
Telephone: (760) 777-7000
Facsimile: (760) 777-7101
With Copy to:
Rutan & Tucker, LLP
6II Anton Blvd., Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson, Esq.
Telephone: (714) 641-5100
Facsimile: (714) 546-9035
To National City:
National City Golf Finance
995 Dalton Avenue
Cincinnati, OH 45203
Telephone: (513) 632-1706
Landmark:
Landmark Golf Management, LLC
74-947 Highway I I I, Suite 200
Indian Wells, CA 93320
Telephone: (760) 776-6688
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This Agreement shall be binding upon, and inure to the benefit of, each of the
parties hereto and each of their respective successors and assigns.
IN WITNESS WHEREOF National City, Landmark and the City of La Quinta
have caused this Agreement to be duly executed as ofthe date above written.
City of La Quinta
Landmark Golf Management,
LLC
~
By: V~
Name: JoY< y VossJe.r
Title: p,..,..,. "J.,q,.,.,.f- f c. ;;'0
CITY OF LA QUINTA, a California
municipal corporation and c r city
BY(/%~Ad ;?
Thomas P. Genovese, City Manager
National City Golf Finance, a division of
National Ci Commercial Capital Company, LLC
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