HomeMy WebLinkAboutC2627 Aquatic Center Design and JUA w-College of the Desert CITY OF PALM DESERT
DEVELOPMENT SERVICES
STAFF REPORT
REQUEST: Approval of Aquatic Center Design and Joint Use Agreement with
College of the Desert
SUBMITTED BY: Janis Steele, Parks and Recreation Services Manager
Martin Alvarez, Senior Management Analyst
DATE: February 22, 2007
C4NTENTS: Aquatic Center Design Proposal
Scheme No. 2 from the Aquatic Center Feasibility Study
Citizen's Survey Aquatic Center Information Results
COD Site Aerial
RECOMMENDATION
By Minute Motion:
1. Approve of the aquatic center design as presented.
2. Approve the joint use agreement between the City of Palm Desert and
College of the Desert.
3. Authorize the City Manager to negotiate any minor changes as needed in
finalizing the agreement.
4. Authorize Staff to proceed through the entitlement process.
EXECUTIVE SUMMARY
On October 27, 2005, the City Council approved a conceptual design (Scheme No. 2
attached), identified the College of the Desert (COD) as the site for an aquatic center,
and authorized staff to proceed with a request for proposals (RFP) for preliminary
design of an aquatic facility based on this design. Staff was also directed to work with
COD staff in finalizing a joint use agreement and to continue to seek funding for an
aquatic facility.
Ruhnau, Ruhnau, Clarke (RRC), was selected and awarded a contract to provide
design and construction support services for the project on February 23, 2006.
In May of 2006, the preliminary results from the City of Palm DeserYs citizen's
recreational needs assessment survey were received. These results indicated that the
top four choices of desired aquatic center features are a lazy river, leisure pool (with
zero depth entry), water slides, and 25-yard lap pool. The architect incorporated the lazy
Staff Report
Approval of Aquatic Center Design and Joint Use Agreement
Page 2 of 6
February 22, 2007
river into the design based on it being the number one choice of the public in all age
groups and demographics.
After a subcommittee of the Parks and Recreation Commission met with the design
team, the current design (see booklet) was presented to the Parks and Recreation
Commission on October 17, 2006, for their approval. It was approved with an 8:1 vote.
There has been a slight change since this presentation. The slides were lowered
approximately ten feet.
During this time, a joint use agreement and the preliminary site plan was developed and
reviewed by both City and COD staff. After review of the plans, COD raised concerns
with the amount of dedicated parking for the pool and the height of the water slides.
Staff worked with COD and revised the site plan to accommodate their concerns. The
parking allocation was reduced from 199 to 50 parking spaces. The height of the slides
was reduced from 40 to 30 feet. Attached is a copy of the agreement for your review.
If this item is approved, the City Council will:
• Approve the preliminary site design.
• Authorize Staff to proceed through the entitlement process and present the plans
to the Architectural Review and Planning Commissions, and begin the
construction documents.
• Approve the joint use agreement as presented and authorize the City Manager to
negotiate any minor changes as needed.
BACKGROUND
On May 12, 2005, the City Council authorized Staff to hire the Aquatic Design Group
(ADG) from Carlsbad, California, to assist with the development of an aquatic center
feasibility study, which included conceptual designs as well as construction and
operational costs estimates. It also included community and stakeholder input.
Conceptual Design:
ADG prepared three conceptual designs that would potentially meet the aquatic needs
of the community and could be utilized on any site within the City. These three different
conceptual designs also provided associated construction, operational costs, and
estimated revenue potentials. The conceptual design that was selected by the Parks
and Recreation Commission and the City Council was Scheme 2.
Scheme 2 was an aquatic center featuring two pools. It included a 25-yard by 25-meter
competition swimming pool with diving boards. The second was a recreational poo! that
is free form with a zero depth entry, and features three play zones. This scheme
includes a double slide flume. This scheme can support diving, competitive swimming
G�DevServ�cesWan�s Steele�Word Fdes�StaH repor1s�200TFebn,ary 22.2001b4Quanc Cerner CC SR Feb 22.doc
Staff Report
Approval of Aquatic Center Design and Joint Use Agreement
Page 3 of 6
February 22, 2007 '
and water polo (USS, High School and College level). Scheme 2 would require the
following:
a. Total Square Feet 153,966
b. Total Acres: Approximately 3.5
c. Total Project Cost: $7,987,790.00
d. Annual Operating Costs: $768,966.00
e. Annual Operating Cost Recovery: $(153,793.00)
Citizen's Survey Results:
As part of the City of Palm Desert's Community Attitude and Interest Citizen's Survey,
citizen's were asked two specific questions regarding what features they would prefer in
an aquatic center (see attached results). The following were the questions from the
survey:
1. The City of Palm Desert is currently planning a new outdoor aquatic center.
Listed below are some potential aquatic features that the City of Palm Desert
could incorporate into the outdoor aquatic center. Please check all of the aquatic
features that you and members of your household will use.
2. Which three of the above aquatic features would you most likely use if they were
included in a new outdoor aquatic center for the City of Palm Desert.
The top results for question No. 1 were:
• 44% would use a leisure pool with gentle slope (zero depth)
• 44% would use a lazy river allowing for raft or flotation device
• 41% would use water slides
• 39% would use a concession area
• 36% would use a 25-yard lap lanes for exercise, 4essons, etc.
The top rated aquatic features respondent households would be most likely to use
(question No. 2 above) if incorporated into a new outdoor aquatic center are:
• 28% lazy river allowing for raft or floatation device
• 27% water slides
• 26°/a leisure pool with a gentle slope entry
• 23% 25-yard lap lanes for exercise, lessons, etc.
Note: Results indicate the pescentage of households who sefected the item as one of
their top three choices.
G�DevServicesUanls Steele�Word Fdes�StaH reports�200TFebruary 22.2007Wquatic Center CC SR Feb 22.doc
Staff Report
Approval of Aquatic Center Design and Joint Use Agreement
Page 4 of 6
February 22, 2007
Staff felt that it was important to integrate feedback from the community, so a lazy river
was added to the design. The rest of the features already existed. As part of the lazy
river, an added feature, a flow rider was designed as a future amenity to the center.
As indicated in the report by ADG, annual operating cost recovery is reduced from
$(153,793.00) for Scheme 2, to $(87,494.00) when these additional features are added.
College of the Desert Pool Site:
Based on the conceptual site plan approved by the Parks and Recreation Commission
and the City Council, Staff worked with COD to develop a site plan that would
accommodate the desired aquatic amenities and parking at the southwest corner of San
Pablo Avenue and Parkview Drive. COD originally offered a site totaling 3 acres that
would accommodate the aquatic center and joint use parking (see aerial attached map).
RRC developed a preliminary site plan that included all the desired aquatic features as
presented in the approved concept plan (Scheme 2) on COD's site. The site plan
included approximately 200 parking spaces.
On August 21, 2006, Staff inet with COD to present the preliminary site plan design,
and to discuss the proposed project. COD responded that the proposed site plan was
acceptable, but that the parking layout (i.e. 200 joint use parking spaces) would not fit
into COD's Master Plan. COD indicated that the original site limits would have to be
reduced to accommodate a new softball field and parking west of the pool site. City
Staff continued to work with COD presenting alternative site plans that would
accommodate the pool and approximately 100 parking spaces. Ultimately, COD
indicated they could only provide land for the pool site and 50 dedicated parking
spaces. The original site size was reduced from 3.41 to approximately 2.15 acres. As
part of the joint use agreement, COD indicated that the remainder of the parking in the
adjacent parking lot would be available to for City use in the summer months, or for
special events with prior approval form COD.
Height of Water Slides:
After the preliminary site plan was presented the Parks and Recreation Commission,
COD expressed a concern with the height of the water slides. In order to address this
concern, the slide height was reduced from 45 feet to 32 feet. In addition, palm trees
and landscaping screening were incorporated into the plan.
Parking:
Based on the joint use agreement, COD will allow the use of fifty on-site parking
spaces, strictly for use by pool patrons. The City's off-street parking requirements
require 1 space per 500 square feet of pool area, plus spaces required for other on-site
uses (i.e. building use). The proposed aquatic center has 20,500 square feet of pool
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Staff Report
Approval of Aquatic Center Design and Joint Use Agreement
Page 5 of 6
February 22, 2007
area and a 7,900 square foot building. Based on the City parking requirements, the
aquatic center project requires a minimum of 72 parking spaces. Forty-one parking
spaces are required for the pool use and thirty-one spaces are required for the building
use (4/1000 square feet).
To accommodate the additional public parking required, parking spaces at the Civic
Center Park will have to be used. During special events or meets, the City will have to
receive prior approval from COD to use additional parking on the campus.
City/COD Joint Use Agreement:
In the Fall of 2006, a joint use agreement was drafted and presented to COD. The
agreement would allow the construction of an aquatic center at COD, and allow the City
and COD to share the facility. Below is a summary of the main points of the agreement
as drafted by the City of Palm Desert. A copy of the draft agreement is attached to the
report.
Site Lease
The agreement specifies that COD will allow the City to construct, operate and maintain
the aquatic center site for $1.00/year, for a fifty-year (50) term. The agreement, allows
for the City an option to extend the lease for an additional five, 10-year terms with
proper notification to COD.
Financial Contribution
College of the Desert has expressed interest in providing financial contribution to the
construction of the aquatic center. The City Manager is currently negotiating with COD
to finalize the amount of the contribution. Once an amount is agreed to, the agreement
will be modified accordingly.
Joint Use of Facilitv
COD will be granted use of the pool facility Monday thru Friday, 8:00 a.m. to 12:00 p.m.,
during the school year (September-May). COD will submit a projected usage schedule
for the City's review prior to July 1 of each year. COD will reimburse the City for the
cost to provide lifeguard supervision during approved usage periods.
Maintenance of Facility
COD will reimburse the City a percentage of the annual maintenance costs based on
COD's actual pool usage. COD's maintenance contribution shall be calculated based
on COD's approved usage schedule in relation to the total annual operating hours for
the pool.
G�DevServlcesUa��s Steele�Word Fdes�StaH repons�2007�February 22.2007�Aquat�c Cemer CC SR Feb 22.doc
Staff Report
Approval of Aquatic Center Design and Joint Use Agreement
Page 6 of 6
February 22, 2007
Joint Parkinq
COD has agreed to dedicate fifty (50) parking spaces adjacent to the pool facility,
exclusively for users of the pool on a year round basis. The remainder of the parking
available in the adjoining parking lot shall be joint parking only during the summer
period (June 1 - August 31) and during non-peak periods with prior written approval by
COD.
COD is currently reviewing the draft agreement. Staff anticipates receiving their
comments prior to the February 22, 2007, City Council meeting. Staff will provide an
oral presentation on COD's comments and/or changes proposed to the joint use
agreement.
Recommendation:
Staff recommends that the City Council approve the design as presented, and authorize
Staff to proceed through the entitlement process to get the facility constructed. Staff
also recommends that the City Council approve the attached joint use agreement with
COD as presented and authorize the City Manager to negotiate any minor changes as
needed in finalizing the agreement.
Submitted By:
.
-
J nis teele artin Alvarez
P rk and Recreation Services Manager Senior Management Analyst
�ITY COUNCIL CTION:
Departm t Head: APPROVED � _ DENIED
RECEI`TL•'`D.,�,�,�,� � OTH.�R
M�ETI C; DAT�, . .
H mer Croy A�S .`-'
NOE�: x.__,
ACM for Develo ent Services ABS�NT; _ .
AB5TAZN: �.�
Approval: tTE�2IFIED BY: �--
�riginal on �'ile w '°`�""�°,
By Minute Motion• 1 A G��� c����r� Q� �{�'�
) pproved moving forward at t�is time with
a competition-sized pool only, as outlined in the staff report
iagram, reserving the right to consider the other proposed
Carlos L. Orte a features at some point in the future; 2) request the Parks
City Manager & Recreation Commission make a recommendation back to the City
Council on the amenities necessary-to serve the competition-
sized pool. 4-1 (Spiegel NO)
Paul Gibson
Director of Finance
G:\DevServices\Martin Alvarez\Word FileslCity Pool\SRWquatic Center CC SR Feb 22.doc
City of Palm Desert
Aquatic Center Design
November 8, 2005
SCHEME 2
The aquatic center features two swimming pools. The swimming pool is a 25-
meter by 25-yard swimming pool. The second pool is a recreational pool that is
freeform with a total surface area of 8,1 15 square feet. The two pools combined
have a maximum bather load of 718 bathers at any one time. An advantage to
a two pool configuration is that each pool can be maintained at a water
temperature that is appropriate for the intended programs. The swimming pool
will typically be maintained at 78-82 degrees for competitive and lap swimming.
The recreation pool can be maintained at 84-86 degrees which is more
comfortable for leisure recreation swimming and learn-to swim programs for
small children. Another advantage of a two pool scheme is it allows
maintenance to be conducted on one pool while the second pool remains
open.
The swimming pool features 8 competitive swim lanes that are 25-yards long and
8-feet wide each. These lanes will be a minimum of 7-feet deep at one end to
support racing platforms and racing platform dives. These 8-lanes will serve high
school swim meets and United States Swimming meets. The pool can be striped
for lanes the entire length of the pool. With 8-foot wide lanes this pool will have
10 lanes for training considering both deep and shallow water areas. If we
assume a maximum of 4 to 6 swimmers in a lane at one time for lap swimming or
competitive training then this pool can accommodate up to 40 to b0 swimmers
at one time. The same lanes can serve lap swimming, master swim, and water
aerobics at the shallow end. The swimming pool can also accommodate a 25-
yard long wall-goal water polo course. The swimming pool can either be a rim-
flow gutter pool or a cantilevered gutter pool edge. The swimming pool also
features two sets of walk-in steps to allow easier access into and out of the pool.
The steps and be connected to create a single set of steps that are the length of
the pool if so desired. The swimming pool will have a water depth of 13'-0" at
the deep end to support up to 3-Meter diving. The shallow end of the pool will
have a water depth of 3'-6" to supporf recreational uses. The eight competitive
lane area will have a water depth of 7'-0", which supports swim meets and
water polo as sanctioned by United States Swimming, The National Federation of
State High School Associations, and College level swimming. The swimming pool
is shown with both a one-meter and three-meter diving board.
The recreation pool has three play zones. One zone of the recreation pool is a
zero-depth beach type entry into the pool. The zero-depth entry will consist of a
concrete deck, non-slip tile, ond a plaster pool finish. There will not be any sand
in this area. This beach type entry will empty into a pool area that is wading pool
depth for small children. This wading pool area has water depths ranging from
0" to maximum of 18-inches of water. Interactive play equipment is shown in this
area for the children to play with. The equipment shown and budgeted for is
free-standing equipment that is climbed onto by bathers. The second zone is a
play area that is approximately 3.5-feet of water depth. This area can support
play and activities for older children such as water volleyball and water
basketball. This area can also serve for swim lessons and water aerobics. The
third zone is a slide receiving area. A dual slide flume is shown in this scheme.
The dual flume allows for a different ride feel. One flume can be an open flume
and the other can be an enclosed flume. The slide receiving area can also
support swim lessons when the slides are not in use.
Shade areas and landscape areas are provided for in this scheme to serve
families that are recreating, birthday parties or other rentals, and swim meet
team locations. Portable bleachers can be used for swim meets or other
functions.
The pool building is assumed to have a receiving area to great the public. From
this area patrons can be directed to the pool area or to locker room areas. The
building is also assumed to have the following amenities and areas:
• Public Entry Area
• Public Bathroom(s)
• Women's LockerjChanging Area
• Women's Bathroom Area
• Women's Indoor Showers
• Men's Locker/Changing Area
• Men's Bathroom Area
• Men's Indoor Showers
• Staff Office(s)
• Lifeguard Break Area
• First Aid Station
• Family Changing Areas
• Multi-Purpose Room(s)
• Concession Area
• Pool Mechanical Area
• Building Storage Room
• Janitor's Storage Room
• Electrical Room
• Chemical Storage Rooms
• Pool Storage Room
The multi-purpose room(s) will be able to accommodate birthday parties, team
meeting rooms, classroom settings or other uses. The public bathroom(s) will
allow the public to use bathroom facilities without having to enter the locker
rooms. A family changing room allows a parent to assist a child without having
to bring a child of the opposite sex into a Iockerlshower area. The actual
building layout and requirements will have to be developed as a site is chosen
and the aquatic programs are fully developed.
SCHEME 2:THEORETlCAL UTILITY OPERATING COST ESTIMATE
DESIGN CRITERIA
Swimming Recreation
Pool Type: Pool Pool
Surface Area
�square feet): 6,250 8,115
Minimum Depth
(feet): 3.5 0.0
Maximum Depth
(feet) 12.0 3.5
Volume (gallons): 362,313 156,201
Turnover (gpm): 1,006 1,307
AVG. DAILY UNIT DAILY ANNUAL
CATEGORY USAGE UNIT PRICE COST COST
Water 3,049 GAL $0.01 $30.49 $10,672.54
Electricity
Circulation 853 KWH $0.15 $127.91 $44,769.65
Electricity Feature
Boosters 239 KWH $0.15 $35.85 $12,547.50
Natural Gas 724 THRM $0.85 $615.40 $215,388.81
Sodium
Hypochlorite 42 GAL $2.00 $84.00 $29,400.00
Muriatic Acid 1 1 GAL $2.50 $26.25 $9,187.50
TOTALS $419.90 $321,466.00
ASSUMPTIONS:
1. Annual Cost based upon 350 days of operation.
2. Analysis does not include maintenance/operations labor costs.
3. Water usoge based upon 55" annual evaporative loss and filter backwash
averaging once weekly.
4. Electrical usage based upon 18 hours per day operation.
5. Natural gas usage based upon air velocity of 5 ft/second, 80 degree water
and 60 degree air temperature.
6. Chemical usage based upon maintaining 1 .0 PPM chlorine and pH of 7.2 - 7.4.
SCHEME 2: THEORETICAL OPERATING COST ANALYSIS
% of Total
Expense Cateaory Amount Exnenses
Labor $ 300,000.00 39.0%
Benefits $ 30,000.00 3.9%
Advertising 1 Promotion $ 15,000.00 2.0%
Insurance $ 10,000.00 1.3%
Maintenance / Repairs $ 40,000.00 5.2%
Utilities, Swimming Pool 8� Competition Pool $ 321,966.00 41 .9%
Other $ 12,000.00 1 .6%
Subtotals $ 728,966.00 94.8%
Cost of Sales
Food 8� Beverage $ 40,000.00 5.2%
Subtotals $ 40,000.00 5.2%
TOTALS $ 768,966.00 100.0%
Assumed Revenue $ 615,172.80 80%
Projected Cost Recovery $ (153,793.20) 80%
SCHEME 2: PROJECT BUDGET ESTIMATE
ITEM DESCRIPTION G�TY UNIT UNIT PRICE EXTENSIONS
2.1 .0 CONSTRUCTION COSTS
Site $
2.1 .1 Preparation/Mobilization 1 Allowance $ 160,000.00 160,000.00
$
2.1.2 Utility Allowance 1 Allowance $ 100,000.00 100,000.00
$
2.1 .3 Swimming Pool 6,250 SF $ 145.00 906,250.00
$
2.1.4 Recreation Pool 8,1 15 SF $ 145.00 1,176,675.00
Pool Interactive Play $
2.1.5 Equipment 1 LS $ 150,000.00 150,000.00
$
2.1.6 Pool Slides 1 LS $ 275,000.00 275,000.00
$
2.1.7 Pool Decks 28,730 SF $ 12.00 344,760.00
$
2.1.8 Pool Area Fencing 1 ,049 LF $ 80.00 83,920.00
$
2.1.9 Site Lighting 1 LS $ 85,000.00 85,000.00
$
2.1.10 Pool Building 6,100 SF $ 300.00 1,830,000.00
$
2.1 .1 1 Parking 239 Space $ 1,500.00 358,500.00
Sidewalks and Paths of $
2.1 .12 Travel 6,1 10 SF $ 8.00 48,880.00
$
2.1 .13 Landscaping 25,661 SF $ 7.00 179,627.00
$
2.1.14 Shade Structures 1,600 SF $ 75.00 120,OOQ.00
2.1.15 TOTAL CONSTRUCTION COSTS $ 5,818,612.00
2.2.0 EQUIPMENT COSTS (FF&E)
$
2.2.1 Equipment 4% LS $ - 232,744.48
2.2.2 TOTAL EQUIPMENT COSTS $ 232,744.48
2.3.0 SOFT COSTS
$
2.3.1 Contingency Costs 15% 907,703.47
$
2.3.2 Permits/Testing/Inspection 2% 121,027.13
�
2.3.3 Architecture 8� Engineering 10% 605,135.65
2.3.4 Acceleration 5� �
302,567.82
2.3.5 TOTAL SOFT COSTS $ 1,936,434.07
2.4.0 TOTAL ESTIMATED PROJECT COST $ 7,987,790.55
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Use of Potential Aquatic Facilities
From a list of 11 aquatic features that could be incorporated into a new outdoor aquatic center,
respondents were asked to indicate all of the ones their household would use. The following summarizes
key findings: �
■ A leisure pool with gentle slope entry (44%) and a lazy river allowing for a raft or floatation
device (44%) are the aquatic featnres that the highest percentage of respondent households
would use. The other outdoor aquatic facilities that the highest percentage of respondent households
would use include: water slides (41%), concession area(39%), and 25 yard lap lanes for exercise,
lessons, etc. (36%).
Q9. Aquatic Features Respondent Households Would Use
if Incorporated into a New Outdoor Aquatic Center
by perc�ntage of respondents(multiple chaces could be made)
Leisure pool with geMte slope entry 44°r6
Lary river allowing for ratt or flotation device 44°h
Water slides 41°r6
Concession area �9%
25 yard lap lanes tor exercise,lessons,etc. 36%
Water sprays with interactive play features 29%
Shallow pool for ir�farrts or tod�ers 25°.U;
Water spray playground 25°�;
- Area with deep weter 24°�6 ;
Hottub or Jacuzzi 24°� :
25 yard lap fanes for competitive swim 14°�6 !
Other 6°�
0% 10% 20% 30% 40% 50%
Sotute: Lei�tue�-i�ioii ETC L���ttue(Jtute '_006�
Executive Summary- 11
Potential Aquatic Facilities Respondents Are Most Likely to Use
From the list of 11 aquatic features that could be incorporated into a new outdoor aquatic center,
respondents were asked to indicate the three features their household would be most likelv to use. The
following summarizes key findings: �
■ A laxy river allowing for a raft or floatation device (28%) had the highest percentage of
respondents select it as one of the three aquatic features they would be most likely to use. There
are three other features that over 20%of respondents selected as one of the three they would be most
likely to use,including:water slides(27%),leisure pool with gentle slope entry(26%)and 25 yard lap
lanes for exercise,lessons,etc.(23%). It should also be noted that leisure pool with gentle slope entry
had the highest percentage of respondents select it as their first choice as the feature they would be
most likely to use.
Q10. Aquatic Features Respondent Households Would Be Most
Likelv to Use if Incorporated into a New Outdoor Aquatic Center
by percentage of respondents who selected the item as one a(their top three choices
Lary river aUowing tor raft or flotation device 2&°�
Water slides 27°r6 :
Leisure pool with gentie slope entry 26°,6 :
25 yard lap lanes for exercise,lessons,etc. 2�°k
Hot tub or Jecuzzi :15°k
Water sprays wifh irrteractive play features 14%
Concession area 139`6
• Area with deep water 13%
Shallow pool for iMants or toddlers 84�0
Water spray playground 8°(0
25 yard lap lanes for competitive swim 6°� :
Other 3%
0% 5% 10% 15% 20% 25% 30% 35%
�Most Likely �2nd Most Likely O3rd Most Likely
Suiuce: Lei�m�e�'i�ion ET�'Li�ihtte�June'006)
Executive Summary- 12 ..
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GROUND LEASE
between
CITY OF PALM DESERT,
a California municipal corporation
("Tenant")
and
DESERT COMMUNITY COLLEGE DISTRICT,
a community college district
("Landlord ")
, 2007
TABLE OF CONTENTS
PAGE
1. Lease of Property.................................................................................................... 1
2. Term of Lease; Possession...................................................................................... 1
2.1 Term.................................................................................................................. 1
2.2 Possession......................................................................................................... 1
3. Rent......................................................................................................................... 1
3.1 Base Rent.......................................................................................................... 1
3.2 Place for Payment.............................................................................................2
4. Utilities.................................................................................................................... 2
5. Net Lease ................................................................................................................ 2
6. Use; Hazardous Materials; Compliance with Laws; Inspection............................. 2
6.1 Use of Property................................................................................................. 2
6.2 Hazardous Materials......................................................................................... 2
6.3 Inspection..........................................................................................................4
7. Construction and Installation of Improvements; Landlord's Contributions and
Rights of Use 5
7.1 The Improvements............................................................................................ 5
7.2 Construction Contracts...................................................................................... 5
7.3 Review of Plans and Permits ............................................................................ 5
7.4 Compliance with Law and Quality................................................................... 5
7.5 Notices of Nonresponsibility............................................................................ 5
7.6 Liens.................................................................................................................. 5
7.7 Ownership of Improvements............................................................................. 5
7.8 Financial Contributions by Landlord; Rights of Use; Parking ......................... 6
7.9 Other Financing of the Improvements..............................................................6
i
8. Maintenance and Repairs........................................................................................ 6
8.1 Maintenance by Tenant..................................................................................... 6
8.2 Requirements of Governmental Agencies........................................................ 7
8.3 Tenant's Duty to Restore Property ................................................................... 7
8.4 Application of Insurance Proceeds ................................................................... 7
8.5 Landlord's Rights of Entry............................................................................... 7
9. Indemnity................................................................................................................ 7
9.1 Landlord's Indemnity........................................................................................ 7
9.2 Tenant's Indemnity........................................................................................... 8
10. Insurance................................................................................................................. 8
10.1 Liability Insurance............................................................................................ 8
10.2 Increase in Insurance Coverage........................................................................ 8
10.3 Fire and Casualty Insurance.............................................................................. 8
10.4 Deposit of Insurance with Landlord ................................................................. 8
10.5 Notice of Cancellation of Insurance ................................................................. 8
10.6 Unavailability of Coverage............................................................................... 8
11. [Intentionally Omitted.] ..........................................................................................9
12. Assignment and Subletting..................................................................................... 9
12.1 Landlord's Consent Required........................................................................... 9
12.2 Additional Provisions Regarding Assignment and Subletting ......................... 9
13. Default and Remedies........................................................................................... 10
13.1 Events of Default............................................................................................ 10
132 Remedies......................................................................................................... 11
13.3 Landlord's Performance of Tenant's Obligations........................................... 12
13.4 Remedies Cumulative..................................................................................... 13
ii
13.5 Waiver of Breach............................................................................................ 13
14. Miscellaneous ....................................................................................................... 13
14.1 Tenant's Duty to Surrender Property.............................................................. 13
14.2 Holding Over .................................................................................................. 13
14.3 Survival........................................................................................................... 13
14.4 Force Majeure; Delays.................................................................................... 13
14.5 Interest on Overdue Payments........................................................................ 14
14.6 Attorneys' Fees............................................................................................... 14
14.7 Discrimination................................................................................................. 14
14.8 Subordination; Attornment; Non-Disturbance................................................ 15
14.9 Reservations by Landlord............................................................................... 15
14.10 Authority................................................................................................... 16
14.11 Jurisdiction and Governing Law............................................................... 16
14.12 Quiet Enjoyment....................................................................................... 16
14.13 Notices ...................................................................................................... 16
14.14 Binding on Heirs and Successors.............................................................. 18
14.15 Time of Essence........................................................................................ 18
14.16 Memorandum of Lease............................................................................. 18
14.17 Counterparts.............................................................................................. 18
14.18 PartialInvalidity........................................................................................ 18
14.19 Entire Agreement...................................................................................... 18
14.20 Amendments............................................................................................. 18
14.21 Construction of Lease............................................................................... 18
14.22 Effect of Delivery ..................................................................................... 19
14.23 Landlord's Consents, Approvals and Other Acts ..................................... 19
iii
EXHIBIT "A" DESCRIPTION OF PROPERTY.............................................................. 1
EXHIBIT "B" DESCRIPTION OF THE IMPROVEMENTS.......................................... 1
EXHIBIT "C" FORM OF MEMORANDUM OF GROIJND LEASE............................. 1
TABLE OF CONTENTS..................................................................................................... i
iv
GROUND LEASE AND AGREEMENT TO CONSTRUCT
THIS GROUND LEASE AND AGREEMENT TO CONSTRUCT (the"Lease") is
dated for reference purposes and entered into as of , 2006, by and between the CITY
OF PALM DESERT, a California municipal corporation ("Tenant"), and DESERT
COMMLTNITY COLLEGE DISTRICT, a community college district, duly organized and validly
existing under the laws of the State of California (otherwise known as the COLLEGE OF THE
DESERT) ("Landlord").
Recitals
A. Landlord owns the land more particularly described in Exhibit"A"
attached hereto (the "Pro ert ").
B. On the terms and conditions set forth in this Lease, Tenant desires to lease
the Property from Landlord, and construct certain improvements thereon, and Landlord requires
Tenant to construct such improvements.
NOW THEREFORE, in consideration of the mutual promises contained herein,
Landlord and Tenant agree as follows:
1. Lease of Property. Landlord hereby leases the Property to Tenant, and Tenant
hereby leases the Property from Landlord, upon and subject to the terms and conditions
contained in this Lease. In addition, Landlord shall provide parking in accordance with the Joint
Use Parking Agreement entered into between Landlord and Tenant of even date herewith (the
Parking A�-eement").
2. Term of Lease; Possession.
2.1 Term. The term of this Lease (the"Term") shall commence on the date of
this Lease and continue for a period of fifty(50) years from such date. Thereafter, Tenant shall
have five(5) successive options (each, an "Option") to extend the Term for an additional ten (10)
years each, provided that: (i) Tenant notifies Landlord in writing not less than six (6) months
prior to the then-scheduled expiration of the Term and (ii)Tenant shall not be in default under
the Lease at the time it exercises an Option.
2.2 Possession. Tenant shall be entitled to take possession of the Property
upon the commencement of the Term. Tenant acknowledges that Tenant has inspected the
Property and Tenant accepts the Property in its existing condition, "AS IS", without
representation or warranty(express or implied) and subject to all defects and conditions, whether
patent or latent, and subject further to all legal requirements such as taxes, assessments, zoning,
use permit requirements and building codes, based solely on Tenant's own inspection, analysis
and evaluation and not in reliance on any information provided by or on behalf of Landlord.
3. Rent.
3.1 Base Rent. As used in this Lease, the tercn "Lease Year" means each
twelve(12) month period during the Term beginning on the date of this Lease, or on any
P6402-0001\926819.1
anniversary thereof. Tenant shall pay to Landlord, without prior notice or demand and without
abatement, deduction, offset or credit, as minimum base rent for the Property("Base Rent"), in
lawful money of the United States at thc time of payrnent, the sum of One Dollar($1.00) for
each Lease Year. The Base Rent for each Lease Year shall be payable to Landlord in advance.
3.2 Place for PaY ent. All Base Rent, utility charges and other sums, if any,
that become payable to Landlord under this Lease (collectively, "Rent") shall be paid to
Landlord on or before the due date in lawful currency of the United States at Landlord's offices
located at 43 - 500 Monterey Avenue Drive, Palm Desert, Calif'ornia 92260, Attention:
, or at any other place or places that Landlord may designate by written notice to
Tenant.
4. Utilities. Tenant shall obtain, at Tenant's expense, all electricity, gas, potable
water, fire suppression water, sewer, waste water services and other utilities needed to operate
the Improvements (as hereinafter defined) during the Term.
5. Net Lease. This Lease is a "net-net" lease; all Rent shall be paid to Landlord
absolutely net of all costs and expenses, except to the extent otherwise expressly provided in this
Lease. Without limiting the generality of the foregoing, Tenant shall be responsible for all
aspects of maintaining and operating the Property and the Improvements, including all charges
for gas, electricity, telephone service, water, sewer service, trash removal and other utilities and
services furnished to the Property during the Term, subject to the provisions of Sections 4 and 7.
Tenant shall indemnify and hold Landlord's property, including the Property and any
improvements now or hereafter on the Property, free and harmless from any liability, loss, or
damage resulting from any taxes, assessments, or other charges required by this Lease to be paid
by Tenant and from all interest, penalties, and other sums imposed thereon and from any sales or
other proceedings to enforce collection of any such taxes, assessments, or other charges.
6. Use; Hazardous Materials; Compliance with Laws; Inspection.
6.1 Use of Property. Tenant may use the Property for the development,
construction, operation and maintenance of the Improvements; provided, however, that:
(a) Tenant shall not use or permit the Property or any portion of the Property to be improved,
developed, used, or occupied in any manner or for any purpose that is in any way in violation of
any federal, state or local law, ordinance, or regulation; and (b)Tenant shall not maintain,
commit or permit the maintenance or commission of any unreasonable fire or health hazards, or
any nuisance, as now or hereafter defined by any statutory or decisional law applicable to the
Property, on the Property or any part of the Property.
6.2 Hazardous Materials.
(a) Definitions.
"Hazardous Materials" shall mean any substance that now or in the future requires
investigation or remediation under, or is regulated or defined as a hazardous waste or hazardous
substance, by any governmental authority or instrumentality or any law, regulation, rule or order,
or any amendment thereto, including, without limitation, the Comprehensive Environmental
P6402-0001\926819.1 -2-
Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. and the Resource
Conservation and Recovery Act, 42 U.S.C. § 9601 et seq.
"Environmental Requirements" shall mean all present and future governmental laws,
regulations, rules, orders, permits, licenses, approvals, authorizations and other requirements of
any kind applicable to Hazardous Materials.
"Handle," "Handled"or"Handiin�"shall mean any installation, handling, generation,
storing, treatment, use, disposal, discharge, release, manufacture, refinement, emission,
abatement, removal, transportation, presence or migration of any Hazardous Materials brought
on the Property by Tenant or Tenant's Representatives.
"Tenant's Representatives" shall mean all Tenant's officers, employees, contractors and
representatives.
(b) Landlord's Consent to Handling of Hazardous Materials. Landlord
hereby consents to Tenants use of the following: (i) Hazardous Materials normally and
customarily used in the development, construction and operation of a swimming facility that are
used, stored, transported and disposed of in accordance with all applicable laws, and (ii) minor
quantities of Hazardous Materials normally and customarily used by operators of swimming
facilities and that are used, stored, transported and disposed of in accordance with all applicable
laws.
(c) Delivery of Certain Documents to Landlord. Prior to
commencement of construction, Tenant shall deliver to Landlord copies of all permits,
authorizations, plans and reports, and supporting documentation therefor, including any
Hazardous Materials management plan, which are required by law or by any governmental
authority with respect to Tenant's use or proposed use of the Property, including any Handling of
Hazardous Materials. Tenant's and Tenant's Representatives' Handling of all Hazardous
Materials shall comply at all times with all Environmental Requirements and Tenant shall, at its
own expense, promptly take all actions required by any governmental authority in connection
with Tenant's or Tenant's Representatives Handling of Hazardous Materials at or about the
Property.
(d) Additional Delivery Requirements. Tenant shall deliver to
Landlord prior to delivery to, or promptly after receipt from, any governmental authority or other
person or entity copies of all permits, manifests, closure or remedial action plans, notices,
investigations, inquiries, claims, citations, summons, complaints, writs, orders and all other
communications or documents relating to (i) the Handling of Hazardous Materials at or about the
Property, or(ii) the actual, alleged or threatened violation of Environmental Requirements. Any
communications, written or oral, regarding any release, discharge, emission or any other
occurrence posing an imminent threat of damage or contamination to the Property or the
environment shall be delivered or, if oral, communicated, to Landlord within ten (l0) days after
receipt.
P6402-0001\926819.1 -3-
(e) Tenant Responsibilitv for Performance. Tenant shall be
responsible and liable for the compliance with all of thc provisions of this Section 6.2 by
Tenant's Representatives.
(� Discharge of Liens. Tenant shall discharge and remove at its own
expense, by bond or otherwise, all liens or charges of any kind filed or recorded against the
Property in connection with Tenant's or Tenant's Representatives' Handling of Hazardous
Materials, within ten (10) business days after the filing or recording of such lien or charge, and if
Tenant fails to do so, Landlord shall have the right, but not the obligation, to remove the lien or
charge at Tenant's expense in any manner Landlord deems reasonably expedient.
(g) Landlord's Rights• Landlord and its representatives and
consultants shall have the right, but not the obligation, to enter the Property at any reasonable
time upon two (2)business days prior notice (except in the case of an emergency) (i) to confirm
Tenant's compliance with the provisions of this Section 6.2, including the right to physically
investigate the condition of the Property and review all permits, reports, plans, and other
documents regarding the Handling of Hazardous Materials, and (ii) to perform Tenant's
obligations under this Section 6.2 if Tenant has failed to timely do so. Tenant shall pay the costs
of Landlord's consultants' fees and all other costs incurred by Landlord pursuant to clause(i)
above if such investigation is undertaken because Tenant has failed to provide full and complete
information regarding any release, discharge or other Handling of Hazardous Materials and shall
pay, in any case, all such costs incurred pursuant to clause(ii) above. Landlord shall use
reasonable efforts to minimize any interference with Tenant's use of the Property by Landlord's
entry into the Property.
(h) Release of Hazardous Materials. In the event of any release,
discharge or other event caused or contributed to by the acts or omissions of the Tenant or
Tenant's Representatives which poses a threat of damage or contamination to the Property,
whether discovered by Landlord or Tenant, Tenant shall fully document the facts relating to the
event, including the circumstances existing prior to and after the occurrence of the event, the
precise nature of the release, discharge or event, including specific compounds and quantities
involved, and all actions Tenant has taken and will take to remediate the release, discharge or
event. Tenant shall provide such documentation to Landlord promptly after the occurrence in
question.
6.3 Inspection. Landlord's consultants shall have the right, but not the
obligation, to enter into the Property at any time, in the case of an emergency, and otherwise at
reasonable times, for the purpose of(a) inspecting the condition of the Property and reviewing all
permits, reports, plans and other documents regarding the Handling of Hazardous Materials,
(b) verifying compliance by Tenant with this Lease and (c) performing Tenant's obligations
under Section 6.2 if Tenant has failed to timely do so. The cost of any such inspections shall be
paid by Landlord, unless a contamination is found to exist or be imminent, or the inspection is
requested or ordered by a governmental authority. In such case, Tenant shall upon request
reimburse Landlord for the reasonable cost of such inspections, so long as such inspection is
reasonably related to the violation or contamination.
P6402-0001\926819.1 -4-
7. Construction and Installation of Improvements; Landlord's Contributions and
Ri�hts of Use.
7.1 The Improvements. Tenant shall cause to be performed all work required
to construct, repair and refurbish the improvements as described in Exhibit "B" (the
"Improvements").
7.2 Construction Contracts. All work on the Improvements shall be
performed only by competent and qualified contractors duly licensed under the laws of the State
of California pursuant to written contracts with such contractors. Tenant shall use its best efforts
to enter into a general construction contract for the Improvements (the"General Construction
Contract") requiring the general contractor to cause the Improvements to be performed in a
manner and timeframe consistent with the terms of this Lease for a guaranteed maximum price.
Tenant shall require that such contractor furnish 100 percent performance and payment bonds
issued by a licensed corporate surety on terms and conditions and in amounts reasonably
satisfactory to Landlord.
7.3 Review of Plans and Permits. Landlord hereby represents and warrants
that the construction of the Improvements shall not require approval by the State Architect.
Tenant shall provide the basic concept and schematic design drawings to Landlord for
Landlord's review and approval, which shall not be unreasonably withheld. If Landlord does not
respond within fifteen (I S) days of receiving the drawings, such approval shall be deemed
granted.
7.4 Compliance with Law and Qualitv. Tenant shall cause the construction of
the Improvements and any other construction, alterations, additions, installations, repairs and
refurbishment at any time undertaken on or in the Property to be performed (a) in a workmanlike
manner with only new and high quality building materials, (b) in compliance with all applicable
building codes and other applicable laws, ordinances, regulations, and orders of all federal, state,
county, and local governmental agencies or entities having jurisdiction over the Property, and
(c) in compliance with all applicable insurance requirements.
7.5 Notices of Nonresponsibilitv. Landlord shall, at any and all times during
the Term, have the right to post and maintain on the Property and to record as may be required
by law, or as otherwise reasonably determined to be appropriate by Landlord, any notice or
notices of nonresponsibility. Tenant shall give Landlord not less than thirty(30) days' written
notice prior to the commencement of any Improvements (including site preparation work) or the
delivery of building materials to the Property.
7.6 Liens. At all times during the Term, Tenant shall keep the Property and
all building and improvements now or hereafter located on the Property free and clear of all liens
and claims of liens for labor, services, materials, supplies, or equipment performed on or
furnished to the Property.
7.7 Ownership of Improvements. Any and all buildings and improvements,
including but not limited to the Improvements, placed or constructed on the Property as well as
any and all other alterations, additions, improvements and fixtures made or placed in or on the
P6402-0001\926819.1 -5-
Property by Tenant shall be owned by Tenant until the expiration or any earlier termination of
this Lease, shall be considered part of the real property of the Property, and shall remain on the
Property and, without compensation to Tenant, on the expiration or any earlier termination of
this Lease shall become the sole propeRy of Landlord free and clear of all claims to or against
them by Tenant or any third party. Tenant shall not remove any improvements from the
Property, commit or permit any waste, or destroy or modify any improvements on thc Property
except as expressly permitted by this Lease.
7.8 Financial Contributions by Landlord; Ri�hts of Use; Parkin�
(a) Construction Contribution. Landlord will contribute $ [xxxx to
be determined] toward the construction of the Improvements. Payment shall be made prior to
start of construction of the Improvements.
(b) Maintenance Contribution. Landlord will reimburse the Tenant a
percentage of the annual maintenance costs based on Landlord's actual usage of the
Improvements (the"Landlord Maintenance Contribution"). The Landlord Maintenance
Contribution shall be calculated based upon the Landlord-approved usage schedule (submitted
each fiscal year) in relation to total annual operating hours for the Improvements, and payment of
the Landlord Maintenance Contribution shall be made to Tenant Quarterly on or before January
1, April 1, Julyland October 1 of each year.
(c) Use of Facilitv. Landlord will be �,�ranted use of the
Improvements, Monday thru Friday, 8:00 a.m. to l 2:00 p.m., during the regular school year,
excluding summers. Landlord shall submit a projected usage schedule for Tenant's review and
approval on or before July 1 of each year. Landlord shall reimburse the Tenant for the cost to
provide lifeguard supervision during the approved usage periods.
(d) Parking Agreement. As described more particularly in the
Parking Agreement: (i) Landlord has agreed to dedicate fifty(50) parking spaces adjacent to the
Improvements, exclusively for users of the pool in the lmprovements on a year round basis; and
(ii) the remainder of the parking spaces located on Lot , shall be joint use parking only
during summers (June 1-August 31) and during non-peak periods with prior written approval by
the Landlord.
7.9 Other Financin�of the Improvements. Landlord and Tenant further a�-ee
to negotiate in good faith such amendments to this Lease as may be reasonably necessary to
accommodate lending transactions or the issuance of bonds to finance the construction of the
Improvements.
8. Maintenance and Renairs.
8.1 Maintenance bv Tenant. Subject to the provisions of Section 8.2
(Requirements of Governmental Agencies), at all times during the Term, Tenant shall, at
Tenant's own cost and expense, keep and maintain the Property and the Improvements
(including all interior, exterior, landscaped areas, systems, equipment, facilities, driveways,
parking lots, fences, and signs) in good order, condition and repair. Tenant's maintenance
obligations shall include restorations, replacements and renewals when necessary to keep the
P6402-0001\926819.1 -6-
Property and the Improvements in good order, condition and repair. Tenant shall, during the
Term, keep the exterior appearance of the Improvements in a first-class condition consistent with
the exterior appearance of other similar facilities of comparable age and size in the vicinity,
including, when necessary, exterior repainting. In keeping the Property and the lmprovements in
good order, condition and repair, Tenant shall exercise and perform good maintenance practices,
specifically including the procurement and maintenance at Tenant's expense of service contracts
for HVAC equipment, any boiler and pressure vessels, fire protection systems, landscaping and
irrigation systems, the roof and drains, and asphalt and parking lots, each with a contractor
specializing and experienced in the maintenance of the applicable equipment or improvements.
Tenant's maintenance obligations under this Section 8.1 shall not be construed as limiting any
right or requirement expressly provided for elsewhere in this Lease for Tenant to alter, modify,
demolish, remove or replace any improvement. No deprivation, impairment or limitation of use
resulting from any event or work contemplated by this Section 8.1 shall entitle Tenant to any
offset, abatement or reduction in rent nor to any termination or extension of the Term.
8.2 Requirements of Governmental A e� ncies. At all times during the Term,
Tenant shall, at Tenant's own cost and expense:
(a) make all alterations, additions, or repairs to the Property and the
Improvements required by any law, ordinance, statute, order, or regulation now or hereafter
made or issued by any federal, county, local, or other governmental agency or entity; and
(b) observe and comply with all laws, ordinances, statutes, orders, and
regulations now or hereafter made or issued respecting the Property and the Improvements by
any federal, county, local, or other governmental agency or entity.
8.3 Tenant's Dutv to Restore Property. Should, at any time during the Term,
any buildings or improvements now or hereafter on the Property be destroyed in whole by fire,
theft, the elements, or any other cause not the fault of Landlord, Tenant shall, at Tenant's own
cost and expense, restore the Property to its original condition prior to the construction of the
Improvements.
8.4 Application of Insurance Proceeds. Any and all fire or other insurance
proceeds that become payable at any time during the Term because of damage to or destruction
of the Improvements or any other buildings or structures on the Property shall be paid to Tenant.
8.5 Landlord's Rights of Entry. Landlord and Landlord's agents shall have
the right to enter at reasonable hours after prior notice of the time and place of entry into and
upon said portions of the Property as necessary for the purpose of ascertaining that the
improvements on the Property are kept and maintained in good condition and repair as provided
for in this Section 8 and that the terms of this Lease are observed. Not withstanding the
foregoing, Landlord must be accompanied by a representative of Tenant.
9. Indemnity.
9.1 Landlord's Indemnitv. Landlord agrees to defend, indemnify and hold
Tenant and its officers, directors, employees, agents and affiliates and their respective assets free
and harmless against and from any and all liabilities, claims, losses, damages, and expenses
P6402-0001\926819.1 -7-
(including attorneys' fees and court costs) resulting from or arising out of(a) Landlord's
intentional misconduct or negligence in its performance hereunder, and (b) Landlord's failure to
perform any of Landlord's obligations under this Lease when and as required by the tcrms
hereof.
9.2 Tenant's Indcmnitv. Tenant agrees to defend, indemnify and hold
Landlord and its officers, directors, employees, agents and affiliates and their respective assets
harmless against and from any and all liabilities, claims, losses, damages, and expenses
(including attorneys' fees and court costs) resulting from or arising out of(a) Tenant's
intentional misconduct or negligence in its performance hereunder, and (b) Tenant's failure to
perform any of Tenant's obligations under this Lease when and as required by the terms hereof.
10. Insurance.
10.1 Liabilitv Insurance. Tenant shall, at Tenant's own cost and expense,
maintain comprehensive liability protection that provides indemnity and defense for the Tenant
against loss or liability caused by or connected with Tenant's occupation, use, disuse, or
condition of the Property under this Lease. Landlord shall be added as an additional protected
party on the Tenant's coverage pro�-am for this particular property.
10.2 Increase in Insurance Covera�e. Not more frequently than each three
years, if, in the reasonable opinion of Landlord, the amount of public liability and property
insurance coverage at that time is not adequate, Tenant shall increase the insurance coverage as
reasonably reyuired by Landlord.
10.3 Fire and Casualtv Insurance. Tenant shall, at Tenant's own cost and
expense, at all times during the Term, keep the Improvements, Tenant's personal property and
other structures on the Property, as well as any and all additions thereto, insured for their full
replacement value against loss or destruction by fire and the perils commonly covered under the
standard extended coverage endorsement to fire insurance policies in the geographic area in
which the Property are located. Any proceeds received because of a loss covered by such
insurance shall be used and applied in the manner required by Section 8. During the construction
of the Improvements, the tenant shall have course of construction, vandalism, and malicious
mischief coverage insuring the Improvements during construction and all materials delivered to
the Property for their full replacement value.
10.4 Dcposit of Insurance with Landlord. Tenant shall deliver to Landlord
evidence of coverage concurrently with Tenant's execution of this Lease and promptly thereafter
when any such policy is replaced, rewritten or renewed.
10.5 Notice of Cancellation of Insurance. Each insurance policy required by
this Section 10 shall contain a provision that it cannot be cancelled or materially changed for any
reason unless thirty(30) days' prior written notice of such cancellation or change is given to
Landlord in the manner required by this Lease for service of notices on Landlord by?enant.
10.6 Unavailability of Covera�e. Notwithstanding anything to the contrary
contained in this Section 10, should insurance coverage meeting all the requirements set forth in
this Section 10 be unavailable due to circumstances beyond the control of Tenant, Tenant and
P6402-0001\926819.1 -8-
Landlord shall ag-ee as to substitute coverage which shall to the greatest extent possible meet the
rcquirements set forth in this Section 10, provided that any substitute coverage shall not be less
than insurance coverage available to and actually obtained for comparable facilities in the State
of California.
11. Lntentionallv Omitted.l
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, encumber or otherwise transfer the Leasehold Estate (as hereinafter
defined) or any right or interest in this Lease or the Property, or permit all or any portion of the
Property to be occupied by anyone other than Tenant, or sublet all or any part of the Property, or
enter into any material amendment of a sublease without the express prior written consent of
Landlord, which consent shall not be unreasonably delayed or withheld. Any such assignment or
subletting without the prior written consent of Landlord, whether voluntary or involuntary, by
operation of law or otherwise, shall be void and shall constitute an Event of Default. A consent
by Landlord to any one assi�mment or subletting shall not be deemed to be a cansent to any
subsequent assi�unent or subletting. Without limiting the matters that may be considered by
Landlord in determining whether to consent to any requested assignment or subletting, Landlord
may take into account the proposed assignee's or subtenant's financial strength and ability to
perform all of the obligations of Tenant under this Lease. No assignment of this Lease shall be
effective unless and until the proposed assignee shall have executed and delivered to Landlord a
written agreement in form and content satisfactory to Landlord pursuant to which the proposed
assignee shall assume and agree to perform when due all of Tenant's obligations under this
Lease, at which time the Tenant shall be released from all of its obligations under this Lease.
12.2 Additional Provisions Re ag rding Assi�nment and Sublettin�.
(a) Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Landlord's determination as to the financial and
operational responsibility and appropriateness of the proposed assignee or sublessee, including
the intended use and/or required modification of the Property, if any. Tenant agrees to provide
Landlord with such other or additional information and documentation as may be reasonably
requested.
(b) Landlord may accept rent or performance of Tenant's obligations
from any person other than Tenant pending approval or disapproval of an assignment. Neither a
delay in the approval or disapproval of such assignment nor the acceptance of rent or
performance shall constitute a waiver or estoppel of Landlord's right to exercise its remedies for
Tenant's default.
(c) Landlord's consent to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting.
(d) Following any assignment of this Lease, the assigning Tenant shall
be fully released from the performance and observance of all obligations of the"TenanY' under
this Lease, as it may be amended from time to time.
P6402-0001\926819.1 -9-
(e) Any assignee of this Lease shall, by reason of accepting such
assignment or entering into such sublease, be deemed to have assumed and agreed to conform
and comply with each and every term, covenant, condition and obligation herein to be observed
or performed by Tenant during the term of said assignment, other than such obligations as are
contrary to or inconsistent with provisions of an assignment to which Landlord has specifically
consented to in writing.
(fl No assignee shall have a right further to assign or sublet without
complying with this Section 12.
(g) Any payments and other economic consideration received by
Tenant (whether before or after the date of such adjustment) as a result of any assi�unent shall
be retained by Tenant.
(h) The term of any sublease shall not extend beyond the Term.
(i) Each sublease shall by its own terms be expressly subject to all of
the terms, covenants and conditions of this Lease.
(j) Each sublease shall contain a provision, satisfactory to Landlord,
that upon the termination of this Lease for any reason, at Landlord's election either(i) the
sublease shall terminate or(ii) the sublessee shall attorn to Landlord and pay rent and perform all
of the other obligations of the sublcssee under its sublease directly to Landlord.
(k) Each sublease shall contain a provision, satisfactory to Landlord,
prohibiting the payment of rent more than three months in advance.
(1) Promptly after execution of any sublease or an amendment to any
sublease, Tenant shall deliver to Landlord a complete and correct copy of the fully executed and
effective sublease or amendment, including all exhibits and attachments.
(m) Upon the occurrence of any Event of Default under this Lease,
Landlord may, at its option, require sublessee to attorn to Landlord, in which event Landlord
shall undertake the obligations of the sublessor under such sublease from the time of the exercise
of said option to the expiration of such sublease; provided, however, that Landlord shall not be
liable for any prepaid rent or security deposit paid by such sublessee (except to the extent
actually paid over to Landlord) or for any prior defaults of such sublessor.
13. Default and Remedies.
13.1 Events of Default. Any of the following events shall constitute an "Event
of Default" under this Lease:
(a) Tenant fails to make any payment of money called for by any
provision of this Lease (whether to Landlord or any third party) when due, or to provide
reasonable evidence of any insurance or bond required by the terms of this Lease, or to fulfill any
other obligation under this Lease that, by not being fulfilled, endangers or threatens life or
P6402-0001\926819.1 -10-
property, where such failure continues for a period of twenty(20) business days following
written notice to Tenant; or
(b) Tenant fails to perform fully and when due any of its other
covenants, conditions or obligations under this Lease and after written notice from Landlord
specifying the nature of such failure of Tenant, Tenant(i)does not immediately commence
taking all necessary and appropriate actions to remedy such failure, or(ii) does not thereafter
diligently and continuously pursue a11 such remedial actions, or(iii) does not fully cure such
failure within the minimum period of time reasonably reyuired under the circumstances to
achieve a cure, which minimum period shall be at least thirty(30) days after Landlord's written
notice of such failure, in any event within ninety(90) days after Landlord's written notice of
such failure, time being strictly of the essence; provided, however, that Tenant shall not be
entitled to cure the breach of any covenant that is non-curable; or
(c) any voluntary or involuntary assi�unent, transfer, encumbrance or
subletting of this Lease occurs in violation of Section 11 or Section 12; or
(d) any material statement or disclosure made by Tenant to Landlord
in order to induce Landlord to enter into this Lease is false or misleading; or
(e) Tenant fails or has failed to disclose any material fact which may
tend to adversely affect, or which may have tended to adversely affect, Landlord's decision to
enter into this Lease; or
(f} any right or interest of Tenant is subjected to attachment,
execution, or other levy, or to seizure under legal process, which is not released within thirty(30)
days; or
(g) a receiver is appointed to take possession or control of the
Property, the Leasehold Estate, or Tenant's operations on the Property for any reason, including
assignment for benefit of creditors or voluntary or involuntary bankruptcy proceedings; or
(h) Tenant makes a general assignment for the benefit of creditors or a
voluntary or involuntary petition is filed by or against Tenant under any law for the purpose of
adjudicating Tenant a bankrupt, or for extending time for payment, adjustment or satisfaction of
Tenant's liabilities, or for reorganization, dissolution or arrangement on account of or to prevent
bankruptcy or insolvency, unless such assignment or proceeding, and all consequent orders,
adjudications, custodies and supervisions are dismissed, vacated or otherwise permanently stayed
or terminated within sixty(60) days after such assigrunent, filing or other initial event.
13.2 Remedies. Upon the occurrence of any Event of Default, and without the
giving of any additional notice not otherwise required hereunder or by law, Landlord may
exercise the following rights and remedies in addition to all other rights and remedies provided
by law or equity, either cumulatively or in the alternative:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender
possession of the Property to Landlord. In such event Landlord shall be entitled to recover from
P6402-0001\926819.1 -11-
Tenant: (i) the unpaid Rent that had been earned at the time of termination; plus (ii) the worth at
the time of award of the amount by which the unpaid Rent that would have becn earned after
termination until the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonabiy avoided; plus (iii) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided. The worth at the time of award
of the amount referred to in clause (iii) of the immediately preceding sentence shall be computed
by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at
the time of award plus one percent (1%). If termination of this Lease is obtained through the
provisional remedy of unlawful detainer, Landlord shall have the right to recover in such
proceeding any unpaid Rent and damages as are recoverable therein, or Landlord may reserve
the right to recover all or any part thereof in a separate suit. If any notice required under
Section 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to
Tenant under the unlawful detainer statute shall also be deemed to constitute the notice required
by Section 13.1. In such case, any applicable grace period required by Section 13.1 and the
unlawful detainer statute shall run concurrently, and the failure of Tenant to cure the Event of
Default within the greater of the two such grace periods shall constitute both an unlawful
detainer and an Event of Default entitling Landlord to the remedies provided for in this Lease
and/or by said statute.
(b) Maintain this Lease and Tenant's right to possession of the
Property in effect and continue to enforce all of Landlord's rights and remedies hereunder,
including the remedy described in California Civil Code Section 1951.4 (granting the landlord
the right to continue a lease in effect after a tenant's breach and abandonment and to recover all
rent as it becomes due if the tenant has the right to sublet or assign, subject only to reasonable
limitations) provided that upon Landlord's election of such remedy, Landlord may not
unreasonably withhold its consent to any assignment or subletting. Acts of maintenance or
preservation or efforts to relet the Property or the appointment of a receiver upon initiative of
Landlord to protect Landlord's interest under this Lease shall not constitute a termination of this
Lease or Tenant's right to possession unless written notice of termination is given by Landlord to
Tenant.
(c) Pursue any other remedy now or hereafter available under the laws
or judicial decisions of the State of California. The expiration or termination of this Lease and/or
the termination of Tenant's right to possession shall not relieve Tenant from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during the Term or by
reason of Tenant's occupancy of the Property.
13.3 Landlord's Performance of Tenant's Obli atg ions. If Tenant fails to
perform any affirmative duty or obligation under this Lease within twenty (20) business days
after written notice (or in case of an emergency, without notice), the Landlord may, at its option,
perform such duty or obligation on Tenant's behalf, including the obtaining of reasonably
required bonds, insurance policies, or governmental permits, licenses and approvals. The costs
and expenses of any such performance by Landlord shall be due and payable by Tenant upon
Landlord's written demand. If any check given to Landlord by Tenant shall not be honored by
the bank upon which it is drawn, Landlord, at its option, may require that all future payments by
Tenant to Landlord be made by bank cashier's check.
P6402-0001\926819.I -I 2-
13.4 Remedies Cumulative. The remedies given to Landlord in this Section
shall not be exclusive but shall be curnulative with and in addition to all remedies now or
hereafter allowed by law and elsewhere provided in this Lease.
13.5 Waiver of Breach. The waiver by Landlord of any breach of Tenant of
any of the provisions of this Lease shall not constitute a continuing waiver or a waiver of any
subsequent breach by Tenant either of the same or a different provision of this Lease. No
waiver, benefit, privilege or service voluntarily given or performed by either party shall give the
other any contractual right by custom, estoppel or otherwise. The subsequent acceptance of rent
pursuant to this Lease shall not constitute a waiver of any preceding default by Tenant other than
default in the payment of the particular rental payment so accepted, regardless of Landlord's
knowledge of the preceding breach at the time of accepting the rent, nor shall acceptance of rent
or any other payment after termination constitute a reinstatement, extension or renewal of the
Term or revocation of any notice or other act by Landlord.
14. Miscellaneous
14.1 Tenant's Dutv to Surrender Property. At the expiration or any earlier
termination of the Term, Tenant shall surrender to Landlord the possession of the Property and
all improvements and fixtures installed or constructed by or for Tenant thereon free and clear of
all claims to or against them by Tenant or any third person or party. Subject to the provisions of
Section 7.7, Tenant shall leave the surrendered property in good, safe and broom-clean
condition. All property that Tenant is required to surrender shall become Landlord's property at
termination of this Lease. If Tenant fails to surrender the Property at the expiration or earlier
termination of this Lease, Tenant shall defend and indernnify Landlord from all liability and
expense resulting from the delay or failure to surrender, including claims made by any
succeeding tenant or any purchaser or prospective purchaser founded on or resulting from
Tenant's failure to surrender.
14.2 Holdin� Over. This Lease shall terminate without further notice at the
expiration of the Term. Notwithstanding Landlord's acceptance of Rent after expiration or any
earlier termination of the Term, any holding over by Tenant shall not constitute a renewal or
extension of the Term or give Tenant any rights in or to the Property. In the event that Tenant
holds over, then the Base Rent shall be increased to one hundred and itfty percent (150%) of the
Base Rent applicable during the month immediately preceding the expiration or earlier
termination of the Term. Nothing contained herein shall be construed as a consent by Landlord
to any holding over by Tenant.
14.3 Survival . Each obligation of Tenant's obligations under this Lease that,
by its nature, is to be, or may need to be, performed after the expiration or any earlier termination
of this Lease shall survive such expiration or termination.
14.4 Force Majeure; Delays. Except as otherwise expressly provided in this
Lease, should the performance of any act required by this Lease to be performed by either
Landlord or Tenant be prevented or delayed by reason of any act of God, strike, war, lockout,
labor trouble, or inability to secure materials, or delay in the issuance of any required
governmental permit, license or approval, the time for performance of the act will be extended
P6402-0001\926819.1 -13-
for a period equivalent to the period of delay and performance of the act during the period of
delay will be excused; provided, however, that nothing contained in this Section shall excuse
the full payment when due of any Rent payable by Tenant or the performance of any act
rendered difficult or impossible solely because of the financial condition of the party required to
perform the act; and provided further that any such extension of the time for performance shall
not affect the commencement or expiration of the Term.
14.5 Interest on Overdue Pavments. All Rent and other sums of any nature that
Tenant fails to pay to Landlord when due under any provision of this Lease or that Landlord pays
to any third party on behalf of Tenant pursuant to any provision of this Lease shall bear interest
from the date due to Landlord or paid by Landlord, as applicable (the"Due Date"), at the rate of
ten percent(10%) per annum, accruing daily but not compounded. Such interest shall be payable
immediately and without the necessity of any demand by Landlord. The fact that Landlord is
entitled to interest under this Section shall not be construed to excuse or mitigate any default by
Tenant.
14.6 Attornevs' Fees. In the event either party brings a suit, action or other
proceeding against the other party that in any way relates to or arises out of this Lease, the
prevailing party(meaning the party that obtains substantially the relief sought by it) shall be
entitled to have and recover from the other party all costs and expenses of the suit, action or
proceeding, including attorneys' fees, from the commencement of the suit, action or proceeding
through the entry of jud�nnent. The trial court shall determine which party is the prevailing party
as well as the amount of attorneys' fees and costs to be awarded immediately following the entry
of judgment (and without awaiting any appeal) in a post-trial proceeding such as is conducted
when a cost bill is submitted. If an appeal is timely filed and if the awarding or amount of
attorneys' fees and costs is at issue in the appeal, then the appellate court (or the trial court,
acting pursuant to an order of the appellate court) shall determine such issue, and the recoverable
attorneys' fees and costs shall include those incurred through the entry of final judgment
following the appeal. In the event that Landlord shall be a party to any legal proceedings
instituted in connection with or arising out of this Lease where Tenant is named as a defendant,
Tenant agrees to pay to Landlord all sums paid or incurred by Landlord as costs and expenses in
such legal proceedings, including Landlord's reasonable attorneys' fees.
14.7 Discrimination.
(a) Tenant, its employees and agents, shall not discriminate against
any person because of race, age, religion, color, ancestry, sex, physical handicap or disability,
marital status, sexual orientation or national origin, nor shall Tenant, its employees or agents,
publicize the availability of work, contracts, accommodations or facilities in any manner that
would directly or impliedly reflect upon or question that acceptability of any person because of
race, religion, color, ancestry, sex, physical handicap or disability, marital status, sexual
orientation or national origin.
(b) Tenant shall not discriminate against any employee or applicant for
employment because of race, age, color, religion, ancestry, sex, physical handicap, or disability,
marital status, sexual orientation or national origin. Such action shall include, but not be limited
to, the following: employrnent, upgrading, demotion or transfer; recruitment or recruitment
Pb402-0001\92b819.1 -14-
advertising; layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. Tenant shall post in conspicuous places, available to
employees and applicants for employment, notices setting forth the provisions of this Section.
(c) Tenant shall permit access to its records of employment,
employment advertisement, application forms, and other pertinent data and records by Landlord,
the State Fair Employment Practices Commission, or any other agency of the State of California
designated by the State of California for the purpose of investigation to ascertain compliance
with this Section.
(d) Landlord may determine a violation of this Section upon receipt by
Landlord of a final judgment having that effect from a court in an action to which Tenant was a
party, or upon receipt of a written notice from the Fair Employment Practices Commission that it
has investigated and determined that Tenant has violated the Fair Employment Practices Act.
14.8 Subordination; Attornment; Non-Disturbance.
(a) Subordination. This Lease shall be subject and subordinate to any
deed of trust or other hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Landlord upon the Property, to any and all advances made on the security
thereof, and to all renewals, modifications, and extensions thereof. Tenant agrees that the
holders of any such Security Devices shall have no liability or obligation to perform any of the
obligations of Landlord under this Lease.
(b) Attornment. Subject to the non-disturbance provisions of
paragraph (c) below, Tenant agrees to attorn to any lender or any other party who acquires
ownership of the Property by reason of a foreclosure of a Security Device, and in the event of
such foreclosure, such new owner shall not (i)be liable for any act or omission of any prior
lessor or with respect to events occurring prior to acquisition of ownership, (ii) be subject to any
offsets or defenses that Tenant might have against any prior lessor, or(iii) be bound by any
prepayment of more than one calendar quarter's Base Rent.
(c) Non-Disturbance. With respect to Security Devices entered into
by Landlord after the execution of this Lease, Tenant's subordination of this Lease shall be
subject to receiving a commercially reasonable non-disturbance agreement(a "Non-Disturbance
Agreement") from the lender to the effect that Tenant's possession of the Property shall not be
disturbed so long as Tenant is not in default hereunder and attorns to the record owner of the
Property.
(d) Self-Executin�. The agreements contained in this Section 14.8
shall be effective without the execution of any further documents; provided, however, that,
upon the written request of Landlord or any lender in connection with a sale, financing or
refinancing of the Property, Tenant and Landlord shall execute such further writings as may be
reasonably required to separately document the subordination, attornment and Non-Disturbance
Agreement provided for herein.
14.9 Reservations bv Landlord. Landlord reserves to itself the right, from time
to time and without the consent or joinder of Tenant, to grant such easements, rights and
P6402-0001\926819.1 -15-
dedications as Landlord may deem necessary, and to cause the recordation of parcel maps and
restrictions, so long as such easements, rights, dedications, maps and restrictions do not
unreasonably interfere with the use of the Property by Tenant. Tenant agrees to sign any
documents reasonably requested by Landlord to effectuate any such easement rights, dedication,
map or restrictions.
14.10 Authoritv. Each individual executing this Lease on behalf of Landlord or
Tenant represents and warrants that he or she is duly authorized to execute and deliver this Lease
on such party's behalf.
14.11 Jurisdiction and Governin�Law. Any action brought by Landlord against
Tenant in connection with this Lease or any matter that in any way relates to the transactions
contemplated by this Lease may be brought by Landlord in any court of competent jurisdiction,
wherever located, having personal jurisdiction over Tenant. The judgment in any such action
may be enforced by any court of competent jurisdiction wherever located. Any action brought
by Tenant against Landlord in connection with this Lease or any matter that in any way relates to
the transactions contemplated by this Lease shall be brought by Tenant in any court of competent
jurisdiction in the State of California. Without limiting the generality of the foregoing, Tenant
hereby submits to the jurisdiction and venue of any court of competent jurisdiction in the State of
California. In connection with any action brought by either party hereto against the other party,
Landlord may take depositions in the State of California or in any other locations worldwide in
which Tenant maintains an office or records; Tenant shall take depositions only in the State of
California. Regardless of who initiates an action or the jurisdiction and venue in which such
action is brought, this Lease and all matters that in any way relate to the transactions
contemplated by this Lease shall be governed by the laws of the State of California.
14.12 4uiet Enjovment. Tenant shall and may peacefully and quietly have, hold
and enjoy the Property hereby demised, for the Term, on the terms and subject to the conditions
contained in this Lease. Landlord warrants and represents that it is the sole and lawful owner of
the Property in fee simple, that the Property are free and clear of all liens and encumbrances
(except as specifically disclosed to Tenant in writing by Landlord), and that Landlord has the
right to enter into this Lease.
14.13 Notices. All notices required or permitted by this Lease shall be in writing
and may be delivered in person (by hand or by overnight courier) or may be sent by regular,
certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, and shall
be deemed sufficiently given if served in a manner specified in this Section. Until changed by a
notice given in accordance with the provisions of this Section, the respective addresses of
Landlord and Tenant for the purpose of receiving notices required or permitted by this Lease are
as follows:
P6402-0001\926819.1 -16-
Tenant:
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, California 92260
Attention:
Telephone: (760) 346-0611
Facsimile: (760) 340-0574
With a copv to:
Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, California 90071-3101
Attention: Jim G. Grayson
Telephone: (213) 626-8484 x 360
Facsimile: (213) 626-0078
Landlord:
Desert Community College District
43-500 Monterey Avenue
Palm Desert, California 92260
Attention: Vice President, Administrative Services
Telephone: (�
Facsimile: (760) 341-9732
With a cop,v to:
Desert Community College District
43-500 Monterey Avenue
Palm Desert, California 92260
Attention: Superintendent/President
Telephone: �)
Facsimile: (760) 341-9732
A copy of all notices to Landlord shall be concurrently transmitted to such pac-ty or
parties at such addresses as Landlord may from time to time hereafter designate in writing. Any
notice sent by registered or certified mail, return receipt requested, shall be deemed given on the
date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon.
If sent by regular mail the notice shall be deemed given on the third business day after the same
is addressed as required herein and mailed with postage prepaid. Notices delivered by United
States Express Mail or overnight courier that guarantee next day delivery shall be deemed given
on the next business day after delivery of the same to the Postal Service or courier. Notices
transmitted by facsimile transmission or similar means shall be deemed delivered upon telephone
confirmation of receipt, provided a copy is also delivered via delivery or mail. If notice is
received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business
day.
P6402-0001\926819.1 -17-
14.14 Bindin�on Heirs and Successors. This Lease shall be binding on and
enforceable by, and shall inure to the benefit of, Landlord and Tenant and their respective
successors, and assigns, subject to the provisions of Section 11.
14.15 Time of Essence. Time is expressly declared to be the essence of this
Lease.
14.16 Memorandum of Lease. Immediately after execution of this Lease,
Landlord and Tenant shall execute and acknowledge a memorandum of this Lease in the form of
Exhibit "C", which Landlord or Tenant may record in the Official Records of Los Angeles
County. Any documentary transfer tax payable in connection thereunder shall be paid by
Tenant.
14.17 Counter�arts. This Lease may be executed in counterparts, all of which
together shall constitute one and the same document.
14.18 Partial Invaliditv. Should any provision of this Lease be held by a court of
competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of
this Lease shall remain in full force and effect unimpaired by the holding.
14.19 Entire A�.�reement. This instrument constitutes the sole and only
agreement between Landlord and Tenant respecting the Property, the leasing of the Property to
Tenant, the performance of the Improvements, and the other subject matter of this Lease, and
correctly sets forth the obligations of Landlord and Tenant to each other as of its date. Any
agreements or representations respecting the Property, their leasing to Tenant by Landlord, or
any other matter discussed in this Lease not expressly set forth in this instrument, including the
Letter of Intent heretofore executed by the parties in contemplation of this Lease, are hereby
superseded and are null and void.
14.20 Amendments. This Lease may be modified only by a written instrument
signed by the parties in interest at the time of the modification. Tenant agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably required by a lender
in connection with any financing or refinancing of the Property, provided that such modifications
do not materially change Tenant's obligations hereunder.
14.21 Construction of Lease. This Lease shall be construed fairly as to all
parties and not in favor of or against any party, regardless of which party prepared this Lease.
Whenever the context requires, all words used in the singular will be construed to have been
used in the plural, and vice versa, and each gender will include any other gender. The captions
of the sections and paragraphs of this Lease are for convenience only and do not define or limit
any terms or provisions. Unless otherwise specifically provided, references in this Lease to
sections, paragraphs and exhibits shall be to sections, paragraphs and exhibits of or to this Lease.
All exhibits hereto are incorporated herein by the references thereto in this Lease. The use in this
Lease of the word "include"or any derivative thereof shall be construed as providing examples
or illustration only and shall not limited the generality of any provision in which it is used. As
used in this Lease, the term "business day" means any day on which commercial banks are open
for business in the State of California, and the term "day" means a calendar day when not
P6402-0001\926819.1 -18-
expressly stated to be a business day. If any period or deadline specified in this Lcase ends or
falls on a day that is not a business day, such period or deadline shall be extended to end or fall
on the next succeeding business day. Wherever used in this Lease, the symbol "$" refers to
dollars in currency of the United States of Amcrica.
14.22 Effect of Deliverv. The delivery of any unexecuted draft of this Lease
shall not constitute an offer by the delivering party or otherwise bind the delivering party or
create any enforceable rights in favor of the other party. This Lease shall not be binding or
enforceable unless and until it is executed and delivered by both Landlord and Tenant.
14.23 Landlord's Consents, Approvals and Other Acts. Although Landlord is a
governmental entity, none of Landlord's consents, approvals or performance of obligations under
this Lease shall constitute consents, approvals or acts in the Landlord's governmental capacity,
but shall constitute consents, approvals and acts by Landlord in its proprietary capacity as the
landlord under this Lease.
�Signature Page FollowsJ
P6402-0001\926819.1 -19-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first
above written.
Tenant: Landlord:
CITY OF PALM DESERT, DESERT COMMUNITY COLLEGE
a California municipal corporation DISTRICT, a Community college district
By: BY�
Name: Name:
Title: Title:
By:
ATTEST: Name:
Title:
ATTEST:
P6402-0001\9268 I 9.1 -20-
EXHIBIT "A"
DESCRIPTION OF PROPERTY
(Attached)
P6402-0001\926819.1 A-1
EXHIBIT "B"
DESCRIPTION OF THE IMPROVEMENTS
(Include narrative description followed by list of plans and specs; include sheet number,job
number, preparer and date)
P6402-0001\926819.1 B-1
EXHIBIT "C"
FORM OF MEMORANDUM OF GROUND LEASE
(Attached)
P6402-0001\926819.1 C-1
RECORD[NG REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, California 92260
Attn:
[Space Above For Recorder's Use Only]
The undersigned Lessor declares that this Memorandum of Ground Lease is exempt from
Recording Fees pursuant to California Government Code Section 27383.
This transfer is exempt from documentary Transfer Tax pursuant to Revenue & Taxation
Code Section 11922.
MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF GROUND LEASE (this "Memorandum") is dated as of
, 2006 and is entered into by and between the CITY OF PALM DESERT, a
California municipal corporation ("Tenant") and DESERT COMMUNITY COLLEGE
DISTRICT, a community college district, duly organized and validly existing under the laws of
the State of California (otherwise known as the COLLEGE OF THE DESERT) ("Landlord").
RECITALS
A. Landlord and Tenant executed that certain Ground Lease dated ,
2006 (the"Lease") affecting the land described on Exhibit "A" (the"Property").
B. Landlord and Tenant now desire to record this Memorandum in order to, among
other things, comply with law requiring that municipal leases be recorded, giving constructive
notice of the existence of the Lease, and permitting the Tenant and its lender(s) to obtain title
insurance.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and the covenants and
conditions contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Ground Lease. Landlord has leased the Property to Tenant, and Tenant has leased
the Property from Landlord, upon and subject to the terms and conditions set forth in the Lease.
The Lease is hereby incorporated herein by this reference.
2. Term. The term of the Lease commences on and
continues for a period of fifty(50) years from such date, which term may be extended by Tenant
pursuant to five (5) successive options to extend the term for additional ten (10) year periods
each.
P6402-0001\92 b819.1 C-2
3. Counterparts. This Memorandum may be exccuted in counterparts, all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the date and year first above written.
TENANT: CITY OF PALM DESERT,
a Caiifornia municipal corporation
By:
Name:
Title:
ATTEST:
LANDLORD: DESERT COMMUNITY COLLEGE DISTRICT,
a Community college district
By:
Name:
Title:
By:
Name:
Title:
AT'TEST:
P6402-0001\926819.1 C-3
EXHIBIT A
DESCRIPTION OF PROPERTY
(Attached.)
P6402-0001\926819.1 C-4
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On _, 2006,before me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
(SEAL)
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On , 2006, before me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence)to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
(SEAL)
P6402-0001\926819.1 C-5
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Page 1 of 1
Klassen, Rachelle
From: Marianne Rhodes [rhodes.mc@gmail.com]
Sent: Monday, February 19, 2007 3:40 PM
To: Klassen, Rachelle
Subject: Water Park
Simple, to the point:
I don't want a water park in Palm Desert, no matter how it's packaged!
Marianne Rhodes
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2/20/2007
Page 1 of 1
Klassen, Rachelle
From: RobertBaker [robertbaker1 @verizon.net]
Sent: Monday, February 19, 2007 5:20 PM
To: Klassen, Rachelle
Cc: suzieohair@mac.com
Subject: Water Park
Palm Desert City Council: Count my vote for a $10 million water park as a big NO Please follow the
whishes of your voters. Thank you, Robert Baker 73530 Feather Trail Palm Desert, CA
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2/20/2007
Page 1 of 1
Klassen, Rachelle
From: PEGGY HENRY [ladiesnightoo@msn.com]
Sent: Wednesday, February 21, 2007 10:48 AM
To: Klassen, Rachelle
Subject: Water Park-NO
We in Palm Desert do not need a water park. We also do not need the higher taxes, many of us are on
fixed incomes. Maybe a walker park. Peggy Henry ,73527 Silver Moon, Palm Desert. (760) 340-3640.
ladiesnightao@msn.com
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Feb 22 07 02:32p p��
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C1T � Ct��RK'S QFFICE
PALt� �►ESE�tT, CA
February �2, 2007 20p1 FEg 22 pM 2: 38
Dear Mayor Kelly and Councilmembers,
Growing up in Palm Desert I frequently went swimming at
the CoElege of the Desert pool. My son took swim lessons
there as well and trained with Palm Desert Aquatics. I agree
the city needs an aquatic facility to accommodate swim
�essons, swim teams, free swimming, masters swimming,
swim meets, water aerobics etc. and perhaps even scuba
lessons. However what is being praposed is far more than
an aquatic center. It is a water park.
Considering there is large water park less than 10 mifes
away, I do not see a need for a water park here in Palm
Desert. Recognizing that the Knatt's water park is only open
for six months of the year, I question whether the city
should be taking on such a seasonal venture.
Lastly I question who the water park would be serving. C�vic
Center park has become more of a regionaf park that
attracts people from all over the valley. I imagine a water
park would do the same. Many residents would choose not
to fight the crowds and stay home.
While my chiidren might disagree with me, I am hoping you
will choose to build only a nice swi facility for the residents
of �alm Desert.
Respectfull�r,
Kim Housken
73237 Somera
Palm Desert
Received Feb-22-07 02:33pm From- To-CITY OF PALM DESERT PaQe O1
Page 1 of 1
Klassen, Rachelle
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From: Harry Parkhurst [haparkhurst@earthlink.net]
Sent: Thursday, February 22, 2007 2:51 PM
To: Klassen, Rachelle
Subject: Water Park at COD
My wife and I live at Monterey Country Club on Calle del Verano. Our street faces COD and the city
park. The lights and noise from the park were there when we moved in so we had no say in the
placement of the park. Today we noticed in the newspaper that you are voting on building a new and
massive water park next to the current ball park. The noise from the ball park can get very loud, but
is only at night. A water jpark would be noisy all day and evening. It is hard for us to imagine why we
are only hearing about this park on the day it is being voted on. I guess public opinion means little to
our elected officials. We can envision hundreds of people coming from the Marriott time shares. This
would impact an already busy Monterey Ave. We were to understand that water in our area was
getting to the critical stage and that conservation was the key word of the day. I guess conservation
is only for the citizens and not the city itself. Having been a resident of Palm Desert for 28 years and
enjoying the quiet and peaceful atmosphere it is troubling to see progress for the sake of progress
only.
Harry and Ann Parkhurst
760-346-1833
h�arkhurst ear_t_hlink_net
EarthLink Revolves Around You.
2/22/2007
SC���E�: F��TPRIA�T' �£C��IR��E�TS
; i���t �����i��r��� ���� (�� �t§}
2 � ; swirnrri�n�.P��l:; 6,25�
2.2 Recrea#ion 1'00l 8,l 15
2,3 ' P�o� D��,�Jrtg ; �8,;73C�
2.4 Bvilding 6,30�
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2 5 ` Shc[de Area 1;3�f� . :
2.6 Par[cing Spaces (239� 71,7Q0
;; 2 7 ' S�devadl�5 and Pa�fis of 7'rcivel 6,1'1 Cl
2.8 Landscape 25,661
2 9 To�al �q°vare �eet ; �53;965 .:
2.10 Total Acre� 3.5
SCHE�E 2: ��PdI��1M BATF{RO�� FIXI'URE R�C�IJIR�M�N�'S
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