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HomeMy WebLinkAbout120902 CSC Agenda AGENDA TEMECULA COMMUNITY SERVICES COMMISSION TO BE HELD AT TEMECULA CITY HALL MONDAY, DECEMBER 9,2002 6:00 P.M. CALL TO ORDER: Chairman Jack Henz FLAG SALUTE: Commissioner Meyler ROLL CALL: Edwards, Hogan, Yorke, Meyler, Henz PRESENTATIONS: Gwen Thurston, Aquatics Manager David Thurman, Landscape Inspector PUBLIC COMMENTS: A total of 15 minutes is provided so members of the public can address the Commissioners on items that are not listed on the Agenda. Speakers are limited to three (3) minutes each. If you desire to speak to the Commissioners about an item not listed on the Agenda, a green "Request to Speak" form should be filled out and filed with the Commission Secretary. When you are called to speak, please come forward and state your name and address. For all other agenda items, a "Request to Speak" form must be filed with the Community Services Commission Secretary before the item is addressed by the Commission. There is a three (3) minute time limit for individual speakers. R:\CSCAGENDI 120902.doc DIVISION REPORTS CONSENT CALENDAR 1. Approval of Community Services Commission Minutes RECOMMENDATION: 1.1 That the Community Services Commission approve the minutes of the November 4, 2002 meeting. SPECIAL PRESENTATIONS 2003 RECYCLING CALENDAR AWARDS PRESENTATION COMMISSION BUSINESS 2. Wolf Creek 43 Acre Sports Complex RECOMMENDATION: 2.1 That the Community Services Commission approve in its substantial form the Master Plan for the 43 acre Sports Complex in the Wolf Creek Development. 3. YMCA Ground Lease A~reement RECOMMENDATION: 3.1 That the Community Services Commission approve in its substantial form the Ground Lease Agreement between the City of Temecula and the YMCA of Riverside City and County, Inc. 4. Crowne Hill Park Joint Use A~reement RECOMMENDATION: 4.1 That the Commission approve the Crowne Hill Park Joint Use Agreement between City of Temecula (TCSD) and the Temecula Valley Unified School District (TVUSD). 5. Election of Chairperson and Vice Chairperson - Community Services Commission RECOMMENDATION: R:\CSCAGEND\120902.doc 5.1 Elect a member from the Community Services Commission to serve as Chairperson from November 1, 2002 to October 31, 2003. 5.2 Elect a member from the Community Services Commission to serve as Vice Chairperson from November 1, 2002 to October 31,2003. COMMUNITY SERVICES DIRECTOR'S REPORT COMMUNITY SERVICES COMMISSIONER'S REPORTS ADJOURNMENT That the Community Services Commission adjourn to the regularly scheduled meeting on Monday, January 13, 2003, 6:00 pm at Temecula City Hall Council Chambers, 43200 Business Park Drive, Temecula, CA 92592. R:\CSCAGEND\120902.doc r ITEM NO. 1 R:ICSCAGEND~TEMNO_SHL MINUTES OF A REGULAR MEETING OF THE CITY OF TEMECULA COMMUNITY SERVICES COMMISSION NOVEMBER 4, 2002 CALL TO ORDER The City of Temecula Community Services Commission convened in a regular meeting at 6:00 P.M., on Monday, November 4, 2002, in the City Council Chambers of Temecula City Hall, 43200 Business Park Drive, Temecula, California. ALLEGIANCE The audience was led in the Flag salute by Commissioner Meyler. ROLL CALL Present: Commissioners Hogan, Meyler, Yorke, Vice Chairman Edwards and Chairman Henz. Absent: None. Also Present: Director of Community Services Parker, Development Services Administrator McCarthy Recreation Superintendent Pelletier, Maintenance Superintendent Harrington, Management Analyst Smith, Museum Services Manager Allen Recreation Coordinator Willcox, Senior Recreation Leader Gaier, Administrative Secretary Zigler, and Minute Clerk Hansen. Minute Clerk Ross PRESENTATIONS Plaque of RecoQnition - Recreation Coordinator. Mr. James Willcox Chairman Henz presented a plaque of recognition to Mr. Willcox in recognition of his continued leadership, quality of customer service and team spirit. Plaque of RecoQnition - Summer Day Camp Recreation Leader, Mr. Geoffrey Gaier Chairman Henz presented a plaque of recognition to Mr. Gaier in recognition of his leadership in the well-organized, well-attended and complaint free SMART Program 2002. PUBLIC COMMENTS No comments. DIVISION REPORTS Recreation Superintendent Pelletier provided an update on the recreational activities in the City, notinQ the followinQ: . HarvesUHalloween Event held at Margarita Community Park on October 26 - the event was well attended and a special thanks went to those that helped with the judging. . Erie Standing Gardner Mystery Weekend - the event held this past weekend was a tremendous success. . Calendar of events for December: o Treelighting Ceremony at the Duck Pond - December 5 o Holiday Lights and Festive Sights Bus Tours - December 11 and December 15 o Winter Wonderland & Breakfast with Santa - December 7 o Electric Light Parade - December 13 o Holiday Lights Judging - December 2 . Invitations have been sent to the Commission regarding the Holiday Lights Judging to be held on Monday, December 2, noting that several responses from the Commission have already been received. . The next Leisure Activities brochure will be out in late December. . High Country Magazine - a publication brought back to life. Commissioner Yorke thanked staff for the experience of judging the costume and screaming contest. In response to Commissioner Meyler's inquiry regarding Bill Harker's involvement in the High Country Magazine, Superintendent Pelletier indicated that Mr. Harker was part of a whole team that brought about the reinvention of the magazine. Replying to Commissioner Edwards question regarding an evening vs. day Harvest Festival, Superintendent Pelletier replied that staff had received positive comments about both. Commissioner Henz inquired about the attendance at the Earle Stanley Gardner Mystery Weekend and Superintendent Pelletier informed him that over 215 people attended, leaving standing room only. For Commissioner Henz, Superintendent Pelletier confirmed that the High Country magazine was being published by the City - that it was actually a joint effort between the City of Temecula and the Friends of the Museum. Director of Community Services Parker further informed the Commission that a big thanks goes to Museum Director Wendell Ott, Fred Lamb Design (Fred Lamb donated his time, money, and effort.), and Phil Bregandy who played an important role in supplying the history about the valley. Director of Community Services Parker indicated that the goal of this endeavor is to publish the magazine biannually. In response to Commissioner Yorke's request for walking tour maps of Old Town, staff indicated that these maps could be picked up at the Museum or at City Hall. Development Services Superintendent McCarthy provided a brief overview of the various proiects in process, as follows: . Make a difference Day - Saturday, October 26 o A total of 117 volunteers of all ages were involved at the two sites- 75 volunteers at the TCC and 42 helped with the cleanup on 79 South. o Radio Station KOLA provided lunch, music, giveaways and a chance to win $10,000. o WRCOG provided advertising for the event as well as gloves, T- shirts and pick sticks for the volunteers. o Recognition went to Ms. Bustin and Ms. Smith for all their efforts in making this event extremely successful. . Household Hazardous Waste Roundup and Community Cleanup was also held on October 26 at Temecula Valley High School. One hundred and fifteen tons of solid waste was collected which was 26 more tons than collected at the same event the previous Spring. . Crowne Hill Park - The grant deed for the park will be going to the City Council for approval on November 12. After acceptance, the construction fence will be removed and the park will be open to the public. As soon as a date is confirmed, a ribbon cutting will be scheduled later this month. . Sports Complex - A conceptual master plan for the Sports Complex will be going to the Board of Directors for their approval on November 26. Maintenance Superintendent Harrinqton provided a brief overview of various proiects that were completed by the Maintenance Division since the Commission last met, relavinQ the followinq: . Worked closely with a local Boy Scout Troup to remove old split rail fencing around the Dodd Memorial Grove and replaced it with new plastic split rail fencing. . The missing directional signs throughout the Santa Gertrudis Bike trail were replaced. . Assisted with the preparation and setup of the Halloween/Harvest Fair. . Steam cleaned the carpets throughout the Mary Phillips Senior Center. . Responded to a water leak at the Temecula wedding chapel. . Refinished gymnasium floor at Community Recreation Center. In response to Commissioner Yorke's concerns regarding the danger of children playing in the detention facility area of the Community Recreation Center/park, Director of Community Services Parker indicated that the area had been cleaned out two years ago with special permits being obtained from the State of California and the Army Corps of Engineers, the area had been fenced to prevent activity in the area, the area is included in the Capital Improvement Program so that when funds are made available the area will be turned into a passage park. Superintendent Harrington further added that the area has been posted and requested that the Commission contact the police if any activity was noted in the area. Regarding the condition of the sculptor at the Duck Pond, Maintenance Superintendent Harrington indicated for Chairman Henz that the sculptor was doing well, however, the area around it was getting trampled by the water fowl. CONSENT CALENDAR 1. Approval of Community Services Commission Minutes RECOMMENDATION: 1.1 That the Community Services Commission approve the minutes of the October 14, 2002, meeting. i MOTION: Commissioner Hogan moved to approve the minutes, as written. The motion was seconded by Commisioner Meyler and voice voice reflected unanimous approval. COMMISSION BUSINESS 2. ImaQination Workshop - Temecula Children's Museum RECOMMENDATION: 2.1 That the Community Services Commission receive and file this report updating the Commission on the Children's Museum Project. Director of Community Services Parker provided the Commission with a brief update on the progress of the Children's Museum Project indicating that an April 2002 opening was anticipated. In response to Commisioner Henz' concerns about quality control, Director of Community Services Parker relayed that most exhibits were designed specifically for children to handle. It is noted that the Commission received and filed this presentation. 3. Community Recreation Center Gymnasium Floor Maintenance ProQram 3.1 That the Community Services Commission receive and file the report on the Community Recreation Center Gymnasium Floor Maintenance Program. Maintenance Superintendent Harrington presented the staff report and slide presentation highlighting the importance of such a program and the advantages of having a well-trained in-house staff to perform the gymnasium floor maintenance. In response to Commissioner Yorke's inquiry about other floor types that have the same life expectancy but require less maintenance, Director of Community Services Parker indicated that staff would be investigating other flooring materials and that there may be opportunities to use other materials depending upon the configuration and use of the rooms. Maintenance Superintendent Harrington confirmed for Commissioner Meyler that because of the previous need to resand the floor some of the floor's life has probably been lost, and that is why staff is performing such a methodical program for maintaining the floor. COMMUNITY SERVICES DIRECTOR'S REPORT Director of Community Services Parker reported to the Commission on the following: . Thanked Superintendent Pelletier's staff for the great Halloween/Harvest Fair. . Reminded the Commission that the City had received a $300,000 grant from the State for the Children's Museum, with further announcements due in December. COMMISSIONER REPORTS Commissioner Yorke reiterated her enjoyment in judging the Halloween costume contest. Commissioner Hogan thanked staff for asking her to judge the Halloween contests again this year. Commissioner Edwards commended staff for the Halloween/Harvest Fair as well as expressed his appreciation for the Maintenance staff's care of the giymnasium floor. ADJOURNMENT At 6:56 P.M. Chairman Henz formally adjourned this meeting to December 9. 2002, at 6:00 P.M., in the City Council Chambers, 43200 Business Park Drive, Temecula. Jack Henz, Chairman Herman D. Parker, Director of Community Services ITEM NO.2 R:\CSCAGEND~TEMNO.SHL CITY OF TEMECULA AGENDA REPORT FROM: Community Services Commission _ Herman D. Parker, Director of Community servic~ December 9, 2002 TO: DATE: RE: Wolf Creek 43 Acre Sports Complex RECOMMENDATION: That the Community Services Commission approve in its substantial form the Master Plan for the 43 acre Sports Complex in the Wolf Creek Development. BACKGROUND: May 23, 2000 the Board of Directors awarded a contract to RJM Design Group to develop a conceptual master plan for the Northwest Sports Complex. At this time the City owned property on Diaz Road and Dendy Parkway, which was the location for this park site. Through negotiations with the developers of the Wolf Creek project, this park site eventually moved to the Wolf Creek Development and expanded from 32 acres Sports Complex to a 40 acre sports complex. With additional negotiations with the developer in 2001, the sports complex once again expanded from 40 acres to 43 acres. The current location for the facility is at the corner of Pechanga Parkway and Deer Hollow Road. RJM Design Group led a design subcommittee through a series of workshops, tours and community input process to develop a concept for the sports park master plan. The subcommittee consisted of Council Members Jeff Stone and Jeff Comerchero, Community Services Commissioners Tom Edwards and Janet Yorke, Presidents of Little League, Pony Colt, Pop Warner Football, Youth Soccer and staff, all participated in this process. In addition, a community-wide workshop was held on April 7, 2001 and the entire community was invited to provide input and suggestions regarding the amenities to be included in this facility. At the conclusion of this design process, the sub-committee and the design committee are recommending that the facility include 4 lighted ball fields, 4 lighted soccer fields, 4 basketball courts, concession stands, restrooms, a maintenance building, tot lot/playground, parking for approximately 460 cars, picnic areas, barbecues, park benches, drinking fountains and walkways. Staff has also explored the possibility of installing synthetic turf fields on the four soccer fields located at the facility. This concept was met with great support from our local your soccer officials. It would be our intent to install the high quality synthetic turf on these fields, which would provide a soccer complex like no other in the State of California. Staff has worked closely with the Temecula Valley Unified School District to ensure that the facility interfaces well with the adjacent proposed high school, which is located on Deer Hollow Road and Pechanga Parkway. We have also discussed with the school district a Joint Use Agreement for parking facilities and athletic facilities. R\ZIGLERG\REPORT\120902 CSC wolf creek sports complex.doc In conclusion, staff, the design committee, the consultant and the sub-committee feel we have designed an outstanding sports complex that would serve the residents of Temecula for many years. The 5 year CIP identifies approximately $14,000,000 towards the construction of this facility. 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I Ii .V/I! {.. .... . 3.L1S '~oOli5SiI~1 !i V~r. l~...._.........<<) . . ! ITEM NO.3 R:\CSCAGEND\lTEMNQ,SHL CITY OF TEMECULA AGENDA REPORT TO: FROM: Community Services Commission Herman D. Parker, Director of Community servic~ December 9, 2002 DATE: RE: YMCA Ground Lease Agreement RECOMMENDATION: That the Community Services Commission approve in its substantial form the Ground Lease Agreement between the City of Temecula and the YMCA of Riverside City and County, Inc. BACKGROUND: In the Spring of this year, the local chapter of the YMCA approached the City with an interest in leasing park ground to construct a 11,000 square foot community recreation center. After a review of several sites, staff determined that the southwest corner of Margarita Community Park would be an appropriate site for such a facility. The 5-year Capital Improvement Program identifies this location as a future site for a community center, however at this time there is no funding for construction. Because the location is adjacent to an elementary school, within a park and surrounded by high-density housing, it was staff's opinion that a community center at this location would serve the City well. As a result, staff and the YMCA began discussions related to the attached Ground Lease Agreement. The attached Agreement would allow the YMCA to lease approximately one-half acre of the Margarita Community Park to develop a YMCA center. The term of the agreement would be for 49 years with an option to renew the agreement for one additional 20 year term. The property would be leased for $1 per year, payable on the first business day of each calendar year. The Agreement contains two milestones that require the YMCA to provide evidence of financing or ability to construct the facility. The YMCA would be required to provide proof that they have at least $600,000 towards the construction of the facility by February 1, 2006. By February 1, 2008, the YMCA must provide the City with proof that they have full funding to begin construction, or be under construction. If either of these milestones are not met, the City has the right to terminate this agreement. The YMCA would be required to maintain all related liability insurance and name the City of Temecula as additional insured They would also be required to pay all construction costs and on-going maintenance and utility costs once the facility is completed. The agreement also requires the YMCA to ensure that at least 60% of their registered participants and members are residents of the City of Temecula. This ensures that this facility will provide quality services to the residents of the City of Temecula. RIZIGLERGIREPORTl120902 CSC YMCA Ground Lease.doc Exhibits A and B are currently being finalized by the City's Public Works Department and will be attached to the final document, which goes forward to the Board of Directors on January 14, 2003 if the Commission approves this item tonight. R\ZIGLERG\REPORT1120902 CSC YMCA Ground Lease.doc N A I" v Centerline Parcels r\gls\k...,..cvIe.........j....Jl.\aeNImargarlla~_.pr N fA N Centerline . Parcels r.\gI$\kellllercvlt:lwpItljeWJ;\aerielmargar1teperk-apl'" GROUND LEASE THIS GROUND LEASE (the "Lease"), is made and entered into as of January 14, 2003, by and between CITY OF TEMECULA, a municipal corporation ("City"), and YMCA OF RIVERSIDE CITY AND COUNTY, INC., a California non-profit corporation ("Tenant"). In consideration of the mutual covenants, conditions and agreements contained herein to be done, kept and performed, City and Tenant do hereby agree as follows: RECITALS A. City is the owner of certain real property located in the County of Riverside, State of California, known as the Margarita Community Park (the "Park") described on Exhibit A, and Tenant desires to lease the portion of the Park legally described on Exhibit B (the "Premises") and construct a YMCA building thereon (the "Building"). The Building, and all other structures and fixtures on the Premises, or constructed on the Premises during the term of this Lease, are collectively referred to herein as the "Improvements". B. The Park has been used by the City for recreational, social and athletic activities available to the public and, in order to meet the recreational and athletic needs of the City, City desires to lease the Premises to a party willing to continue to use the Premises for recreational, social and athletic activities available to the public in order to enhance the availability of such activities to the residents of Temecula. C. Tenant desires to lease the Premises subject to the terms of this Lease and for the purposes of providing recreation activities for members of the public. 1. LEASE OF PREMISES. a. Demise. City does hereby demise and lease the Premises to Tenant, and Tenant does hereby lease the Premises from City upon and subject to the following terms and conditions. b. Parking Rights. The City will permit Tenant to use eighty (80) parking spaces in the surface parking lot in the Park near the entrance to the facility that will be constructed by Tenant on the Premises. c. No Mineral Rights. Notwithstanding the definition or description of the "Premises" herein, this Lease does not demise or lease to any oil, gas or minerals in place underneath the surface of the Premises or the right to extract and remove the same, which oil, gas, minerals and right are reserved to, and retained by, City. d. Subdivision. If required under applicable law, Tenant shall obtain, with City's reasonable cooperation (at no cost or expense to City), all requisite approvals to make the Premises a separate legal parcel in compliance with the California Subdivision Map Act and all applicable local and/or municipal subdivision regulations, subject to conditions of approval 11 086/01Iln09744.4 reasonably acceptable to Tenant, and Tenant and City shall record a parcel map required by applicable law. 2. TERM OF LEASE: EXTENSION OPTION. The term of this Lease shall be for a period of forty-nine (49) years, commencing on January 14,2003 (the "Commencement Date"), unless sooner terminated pursuant to the terms of this Lease. Tenant shall have the option to extend the initial term of this Lease for twenty (20) years upon the following conditions: (i) Tenant shall deliver to City written notice (the "Extension Notice") of Tenant's election to extend the term of this Lease on or prior to the date that is one hundred and eighty (180) days prior to the expiration of the initial term, and (ii) as of the date of the Extension Notice and as of the expiration of the initial term, no default (or event or condition which with the passage of time or notice, or both, would constitute a default) exists under this Lease. 3. CONDITION OF PREMISES. a. As Is. Tenant acknowledges that it is sophisticated and knowledgeable with regard to evaluating and leasing real property and that prior to the commencement of this Lease, Tenant has had sufficient opportunity to investigate title to the Premises, obtain an ALTA survey and ALT A title insurance, investigate whether the Premises complies with law (including, without limitation, subdivision laws) and whether the uses desired by Tenant are permitted by law, and enter the Premises to perform such tests and investigations as Tenant deems necessary to satisfy itself as to the physical condition of the Premises (including, without limitation, seismic, soils and geotechnical conditions and the existence or absence of Hazardous Materials). Tenant has also reviewed and approved the access to the Premises and the feasibility and cost of constructing utility lines and facilities and obtaining any necessary easements. TENANT ACKNOWLEDGES AND AGREES THAT TENANT IS LEASING THE PREMISES IN THEIR CURRENT, "AS IS" CONDITION, WITH ALL FAULTS AND DEFECTS, WITHOUT ANY REPRESENTATIONS OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND SUBJECT TO ALL MATIERS OF RECORD AND ANY ADDITIONAL MATIERS THAT MAY HAVE BEEN DISCLOSED TO TENANT. b. General Release. Tenant and anyone claiming by, through or under Tenant hereby waives its right to recover from and fully and irrevocably releases, discharges and acquits City and City's employees, representatives, agents, advisors, servants, attorneys, successors and assigns, and all persons, firms, corporations and organizations acting on City's behalf (the "Released Parties") from any and all claims, responsibility and/or liability that Tenant may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to the matters described in Section 3(a), above. This release includes claims of which Tenant is presently unaware or which Tenant does not presently suspect to exist which, if known by Tenant, would materially affect Tenant's release of the Released Parties. Tenant specifically waives the provision of any statute or principle of law, which provides otherwise, including but 1 10861011 ln09744.4 -2- not limited to any right Tenant and anyone claiming by, through or under Tenant may have under Section 1542 of the California Civil Code ("Section 1542"), which reads: 'A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WillCH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN illS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED illS SEITLEMENT WITH THE DEBTOR.' BY INITIALING BELOW, TENANT HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATIERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES. Tenant's Initials: c. Survival. This Section 3 shall survive the expiration and any earlier termination of this Lease. 4. USE OF PREMISES: COMPLIANCE WITH LAW. a. Use. Tenant shall use the Premises for athletic, social and recreational activities available to the public, including, but not limited to fitness programs, handball, racquetball, basketball, teen program, recreation classes and similar programs and for no other purposes (except as may be expressly approved by City in its sole and absolute discretion). Tenant shall in good faith and with reasonable diligence develop and offer programs that reflect community needs with the mission and goals of the YMCA as parameters and shall cooperate and consult with the City in the development of such programs. Tenant will not implement youth soccer programs or youth baseball programs that would, in the good faith judgment of City, either conflict with any existing youth programs in the City of Temecula or which would create excessive demand for use of the baseball fields in the City. The service level in any event shall not be less than the service level provided by other YMCA's in Riverside County. Tenant may require persons using the facilities to be members of Tenant's organization, but such memberships shall be open to all members of the public, subject to compliance with Tenant's lawful rules and regulations, and Tenant shall at all times ensure that no less than sixty percent (60%) of their program participation at the Premises are from residents of the City of Temecula. In the month of January of each calendar year during the term of this Lease, Tenant shall submit to City both: (i) reasonable evidence of Tenant's compliance with the preceding sentence during the preceding calendar year; and (ii) an award program summary report including program rosters for the preceding calendar year, descriptions of programs in place during the preceding calendar year, and a description of changes to programs for the then-current year, new programs and programs to be terminated in the then-current year. b. No Nuisance or Waste. Tenant agrees not to conduct or permit to be conducted any public or private nuisance on or from the Premises, or to commit or permit to be committed any waste upon the Premises. 11086101 11n09744.4 -3- c. Compliance with Law. Tenant shall comply with all laws, orders, rules, regulations, ordinances, pennits and requirements of governmental authorities with respect to the Premises, the Improvements and Tenant's activities and operations on the Premises. d. Signs. Tenant shall have the right to install signs subject to and in accordance with the Temecula Municipal Code. 5. CONSTRUCTION OF IMPROVEMENTS. a. Construction. Tenant shall not construct, place or use any temporary or "modular" facilities on the Premises. Tenant shall construct the Building and Improvements in accordance with plans and specifications reasonably approved by City, but Tenant acknowledges and agrees that the Building must contain at least 11,000 usable square feet. Tenant's construction of the Improvements shall be at Tenant's sole cost and expense. All of the work shall be performed diligently, in a good and workmanlike manner, and in compliance with all laws, ordinances and regulations applicable thereto, including all applicable provisions of state, federal and local prevailing wage laws and public bidding requirements, and all zoning requirements and building code requirements of the City of Temecula and any other governmental agency having jurisdiction over the Premises. Tenant shall keep the Premises in a neat and orderly condition, free of weeds, dust and debris during any construction, operation or maintenance activities. Tenant shall protect all adjacent property against damage resulting from the performance of the work on the Premises. b. Evidence of Financing: Citv Tennination Rights. If Tenant fails to deliver to City on or before February 1, 2006, reasonable evidence that Tenant has raised and committed at least Six Hundred Thousand Dollars ($600,000) for the construction of the Building, City may tenninate this Lease by written notice given on or before April 1, 2006. If Tenant fails to deliver to City on or before February 1, 2008, reasonable evidence that Tenant can finance the remainder of the cost of the Building and related Improvements (such as a binding construction loan commitment or executed loan documents covering such cost), or if Tenant fails to commence construction of the Building in a material way on or before said date, then City may tenninate this Lease by written notice given on or before Aprill, 2008. c. Ownership of Improvements. The Building and other Improvements and all related warranties and other rights against architect's contractors and other persons hired by or on behalf of Tenant in connection with the Improvements), shall belong to Tenant during the term of this Lease, but shall become the property of City upon the expiration or earlier tennination of that Lease. Trade fixtures and equipment installed by Tenant shall belong to Tenant. d. Other Alterations. Additions and Improvements. Tenant shall not make any other alterations, additions or improvements to the Building or the Premises costing in excess of $25,000 or that would affect the appearance of the Building or Premises without City's prior written consent, but City shall not unreasonably withhold such consent. e. Notice. At least thirty (30) days prior to the commencement of any work to be constructed by Tenant on the Premises (whether or not City's consent is required), Tenant 11 086/0lIln09744.4 -4- shall submit to City a written notice specifying the nature and location of the intended work and the expected date of commencement thereof and City may post notices of non-responsibility. f. Mechanic's Liens. To the extent any work on the Premises is performed by, on behalf of or for the benefit of Tenant, Tenant shall promptly payor cause to be paid, all money due and payable for and on account of the work, and shall indemnify and keep and hold City free and harmless from any and all mechanic's and materialmen's design professionals and site improver's liens arising from or growing out of the work. If Tenant shall in good faith contest the validity of any such lien, claim, or demand, then Tenant shall, at its expense, defend itself and City against the same and shall pay and satisfy any adverse judgment that may be rendered thereon prior to execution thereof, and in the event of any such contest Tenant shall provide City with a security bond in form and substance reasonably acceptable to City. g. Bonds. In connection with the construction of the Building, and to the extent Tenant performs any other work upon the Premises with a value in excess of twenty five thousand dollars ($25,000), Tenant shall, at its sole expense, provide for City's benefit, labor, material and performance bonds or other security approved by City. 6. RENT. a. Annual Rent. Commencing with the year 2003, Tenant shall pay rent to the City in the amount of one dollar ($1.00) per calendar year, payable on the first business day of each calendar year. b. Triple Net Lease. Tenant hereby acknowledges and agrees that this is a so-called ''TRIPLE NET LEASE" such that all costs and expenses arising out of the use and occupancy of the Premises and Improvements, or the execution, delivery or recordation of this Lease, including, but not limited to, ad valorem taxes, possessory interest taxes, and utility, security, maintenance, and insurance costs, are payable by Tenant on and after the date on which construction of the Building or other Improvements commences. It is the intention of City and Tenant that from and after such date, the annual rent paid to City shall be absolutely net of all costs and expenses relating to the Premises or Improvements. 7. TAXES AND ASSESSMENTS. a. Pavrnent of Taxes and Assessments. Upon and after the issuance of a certificate of occupancy for the Improvements (the "CofD Date"), Tenant agrees to payor cause to be paid, before delinquency, any and all taxes, assessments, license fees and public charges levied, assessed or imposed or which may become payable during the period from the CofD Date to the expiration of the term hereof upon the Premises, the Improvements and all furnishings, appliances, equipment and all other personal property installed or located on the Premises, including, but not limited to, possessory interest taxes and other impositions, general or special, ordinary or extraordinary, of every kind or nature, which may be levied, assessed or imposed upon or with respect to the Premises, the Improvements or any part thereof, fixtures, equipment or personal property of Tenant at any time situated thereon (including, but not limited to, any ad valorem and inventory taxes), any transfer or conveyance tax arising out of this Lease (collectively, "Taxes"). Tenant shall pay all such Taxes as they become due and payable and, 1108610111n09744.4 -5- upon request, shall provide City with appropriate evidence of their payment. At the CofO Date and end of the Lease term, the taxes, assessments, and public charges to be paid by Tenant shall be prorated. CITY HEREBY GIVES TENANT NOTICE, AND TENANT ACKNOWLEDGES ITS RECEIPT OF SUCH NOTICE, AS REQUIRED PURSUANT TO SECTION 107.6 OF THE CALIFORNIA REVENUE AND TAXATION CODE, THAT TENANT'S LEASEHOLD INTEREST CREATED BY THIS GROUND LEASE MAY RESULT IN A POSSESSORY INTEREST TAX BEING LEVIED AGAINST THE PREMISES, AND THAT IN SUCH EVENT TENANT SHALL BE OBLIGATED TO PAY SUCH TAX. b. Tenant's Right to Contest Taxes. Without limiting the right of City to contest any Taxes, Tenant shall have the right to contest Taxes, provided Tenant shall: (i) deliver to City a bond or other acceptable security in the amount of one hundred ten percent (110%) of the contested amount and (ii) in good faith and with due diligence, contest the same or the validity thereof by appropriate legal proceedings which shall have the effect of preventing the collection of the Tax and the sale or foreclosure of any lien for such Tax. Tenant shall have the right, at its sole expense, to institute and prosecute, in it own name, any suit or action to contest any Tax payable by Tenant or to recover the amount of any such Tax, but, in such event, Tenant hereby covenants and agrees to indemnify and save City harmless from any and all costs and expenses, including attorneys' fees, in connection with any such suit or action. Any funds recovered by Tenant as a result of any such suit or action shall belong to Tenant except to the extent any such recovery allocable to a period of time which is not part of the Term. Any part of such recovery relating to a period not part of the Term shall be paid to City. 8. REPAIRS AND MAINTENANCE. a. Upon and after the CofO Date (as defined in Section 7a.), Tenant shall, at Tenant's sole cost and expense, repair, maintain and replace when necessary all portions of the Premises and hnprovements, including all structural components, all interior components and all components of the grounds of the Premises, in good working order, condition and appearance in order to support the professional programs of the Tenant. Upon and after the CofO Date, Tenant will diligently maintain and care for the landscaping that is installed on the Premises in accordance with the Plans approved by City, using generally accepted methods for cultivation and watering. Upon and after the CofO Date, Tenant shall provide sufficient water to the landscape to maintain it in a healthy, thriving condition, keep the irrigation system functioning with no broken parts (subject to allowing reasonable time to repair broken parts of malfunctioning systems), and shall keep the landscaping trimmed by removing dead wood from trees and shrubs, trimming back foliage which has exceeded the landscape boundaries and shaping the plants as necessary, and keeping turf mowed to a height of between two and three inches and trimmed back from edges of the hnprovements, and weeds, trash, debris and plant material that has died or become unsightly shall be removed on a weekly basis. b. Tenant shall also, at Tenant's sole cost and expense, obtain, repair, maintain and replace as necessary, all equipment, fixtures and personal property used for the professional programs of the Tenant. c. City shall not be obligated to make any repairs, replacements or renewals of any kind, nature or description whatsoever to the Premises or (after the CofO Date) the 1108610111n09744.4 -6- Improvements, and Tenant hereby expressly waives all right to make repairs at City's expense under sections 1941 and 1942 of the California Civil Code, as amended from time to time. d. Tenant shall reimburse City, within ten (10) days after written demand given from time to time, for fifty percent (50%) of all costs and expenses incurred by City to slurry seal and re-stripe the surface parking lot in the Park. City estimates that such work will be necessary every three (3) years, but City reserves the right to perform such work more often if necessary in the good faith discretion of City. 9. CURE RIGHTS OF CITY. If Tenant does not perform its obligations pursuant to this Lease within thirty (30) days after notice from City (except that no notice or cure period shall apply to a failure to obtain insurance) City may (but shall not be obligated to) perform any obligation of Tenant pursuant to this Section at Tenant's cost and expense. Said election by City shall not constitute a waiver of any right or remedy for Tenant's default. Tenant shall reimburse City for the cost and expense it incurred in the performance of Tenant's obligation within thirty (30) days after City's written request for payment. Tenant shall also indemnify, defend with legal counsel approved by City (approval by City shall not be unreasonably withheld) and hold hann1ess City and its officers, employees, servants and agents from and against all claims, actions, liabilities, losses, damages, costs, attorneys' fees and other expenses of any nature for loss or damage to property, or injury to or death of persons, arising in any manner whatsoever, directly or indirectly, from City's performance pursuant to this Section other than the City's gross negligence in performing the work. The indemnification, defense and hold hann1ess provisions of this Section shall survive the expiration or termination of this Lease. 10. USE OF HAZARDOUS MATERIALS. Tenant's use of any pesticides, herbicides and other Hazardous Materials on the Premises must comply with all applicable laws and shall be limited to the use and storage of such Hazardous Materials that are necessary and customary for the operation of a YMCA. Disposal of all pesticides, herbicides, and other Hazardous Materials, and any containers, clothing, equipment and other materials contaminated therewith, must also comply with law. 11. UTll..ITIES. Commencing on the date on which construction of the Building or other Improvements commences, Tenant shall pay when due, and to defend, indemnify, and hold City hann1ess from and against any claims and liabilities for, charges for water, sewage, gas, electricity and other utility services of every kind and nature supplied to or used on the Premises or Improvements. 12. INDEMNIFICATION AND HOlD HARMLESS. a. Tenant shall indemnify, defend (with legal counsel approved by City, such approval by City shall not be unreasonably withheld) and hold hann1ess City and its councilpersons, officers, employees and agents from and against all claims, actions, liabilities, losses, damages, costs, attorneys' fees and other expense of any nature for loss or damage to 1108610111n09744.4 -7- property, or injury to or death of persons, arising in an manner whatsoever, directly or indirectly, by reason of this Lease, the construction of the Building and other hnprovements, or the use or occupancy of the Premises or hnprovements or Tenant's property by Tenant and its agents, contractors, employees, invitees, representatives, sublessees and assignees (collectively "Claim") (whether the Claim be made during the Lease term or thereafter), exceot such loss, damage, injury or death caused by the gross negligence of City or any of its officers, employees or agents. b. Additionally, Tenant shall indemnify, defend with legal counsel approved by City (such approval shall not be unreasonably withheld) and hold harmless City and its councilpersons, officers, employees and agents from and against any and all claims, actions, liabilities, losses, damages, costs, including, without limitation, the cost of any required or necessary repair, cleanup, or detoxification, and the preparation of any response, remedial, closure or other required plans, attorneys' fees and other expenses of any nature including, without limitation, all foreseeable and all unforeseeable consequential damages, directly or indirectly arising out of the presence, use, generation, storage, release or disposal of Hazardous Materials on the Premises or hnprovements or Tenant's property, except for (i) those present on the Premises as of the date of the this Lease, or (ii) those which may be placed on the Premises by City or City's employees, agents or contractors after the date of this Lease. If Tenant receives any notice, whether oral or written, of any inquiry, test, investigation, enforcement proceeding, environmental audit or the like regarding any Hazardous Material on the Premises, Tenant shall immediately notify City in writing of such notice. c. As used in this Lease, the term "Hazardous Materials" means any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated or addressed pursuant to (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 D.S.C. Section 9601, et seQ. ("CERCLA"); the Hazardous Materials Transportation Act, 49 D.S.C., Section 1801, et seQ.; the Resource Conservation and Recovery Act, 42 D.S.C., Section 6901, et~; the Toxic Substances Control Act, 15 D.S.C., Section 2601, et~; the Clean Water Act, 33 D.S.C. Section 1251, et~; the California Hazardous Waste Control Act, Health and Safety Code Section 25100, et ~; the California Hazardous Substance Account Act, Health and Safety Code Section 25330, et seQ.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5; et ~ California Health and Safety Code Section 25280, et seQ.; (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1, et seQ. California Health and Safety Code Section 25501, et ~ (Hazardous Materials Response and Plans Inventory);or the Porter-Cologne Water Quality Control Act Water Code Section 13000, et seQ., all as amended, (2) any other federal or state law or any local law regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now is, or at any time hereafter may be, in effect, and (3) any rule or regulation adopted or promulgated under or pursuant to any of said laws. d. The liability of Tenant under this Section and any other defense, indemnity and hold harmless obligations under this Lease shall not be limited by the insurance provisions of this Lease. The indemnification, legal defense and hold hannless provisions of this Lease shall survive the expiration or termination of this Lease. l108610111n09744.4 -8- 13. INSURANCE. a. Coverage. As to all activities hereunder, the following insurance shall be obtained and maintained in force from the CofO Date (as defined in Section 7a.) until the expiration of the Term (except as otherwise provided in Subsections 13 a.(l) and (4)): (1) (2) (3) (4) I 10861011 In09744.4 Commercial General Liability. Commencing upon Tenant's entry onto the Premises for any purpose and continuing until the latter of (i) the date Tenant has permanently vacated the Premises, or (ii) the expiration or earlier termination of this Lease, Tenant shall carry and maintain in effect Commercial General Liability insurance (including but not limited to, coverage for premises/operations, excavation, collapse and underground hazards, products/completed operations, broad form property damage (including blanket contractual liability), acts of independent contractors, and bodily injury and property damage) providing for minimum limits of Two Million Dollars ($2,000,000.00) annually for bodily injury, including death, and property damage, arising from anyone occurrence, a Five Million Dollar ($5,000,000.00) aggregate limit, and a deductible of not greater than One Hundred Thousand Dollars ($100,000.00) per loss. Automobile Liability. Tenant shall carry and maintain in effect Automobile liability insurance covering all owned, non-owned and hired automobiles with minimum insurance limits of One Million Dollars ($1,000,000.00) for bodily injury and property damage arising from anyone occurrence with a deductible of not greater than One Hundred Thousand Dollars ($100,000.00) per loss and containing appropriate no-fault insurance provisions. Workers' Compensation Insurance. Tenant shall carry and maintain for its employees Workers' Compensation insurance in accordance with State and Federal laws including statutory Califomia benefits and other states' endorsement, and benefits that may fall under the jurisdiction of the U.S. Longshoremen's and Harbor Worker's Act covering loss resulting from injury, sickness, disability or death, if such exposure exists; and Employer's Liability insurance with limits of not less than One Million Dollars ($1,000,000.00) each accident or disease or the minimum limit necessary to meet the underlying requirements of the excess liability carrier. Builder's Risk/All Risk Insurance. Commencing with the commencement of construction of Improyements by Tenant on the Premises, Tenant shall, at its sole cost and expense, arrange for (A) builders' risk insurance for the Building and other Improvements -9- I 1086101 I Inll9744.4 (5) until the date that Tenant determines that the Building and other Improvements are commercially operational on an "all risk basis" in a completed value fonn with "extended coverage" and appropriate sublimits providing (i) coverage for the Building and other Improvements which insurance shall include coverage for removal of debris (which debris arises as a result of an insured loss), insuring the buildings; structures, boiler and machinery, equipment, facilities, fixtures and other property constituting a part of the Improvements, (ii) off-site coverage in an amount not less than Five Hundred Thousand Dollars ($500,000.00), (iii) transit coverage in an amount not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per conveyance per occurrence, provided, however, Tenant shall obtain a rider increasing the transit coverage for each piece of equipment to be shipped or otherwise delivered to the Site with a value greater than Two Hundred Fifty Thousand Dollars ($250,000.00) to an amount equal to the value of such piece of equipment, (iv) coverage for operational testing, and (v) coverage for collapse; all such policies may have a deductible of not greater than One Million Dollars ($1,000,000.00) per loss; and shall cover the cost to replace or repair the Building and Improvements (except as otherwise provided in (iii) above) but in no event shall be less than Million Dollars ($_,000,000.00) [?] with appropriate sublimits; and (B) after the date that Tenant determines that the Building is commercially operational, an all-risk property insurance policy providing coverage, in the minimum amount of the full replacement cost of the Building and Improvements, with appropriate sublimits, in respect of physical loss or damage to real or personal property, and providing for business interruption coverage in an amount each policy year equal to the reasonably expected gross revenues for such year less reasonably expected noncontinuing expenses for such year (which expected gross revenues and noncontinuing expenses shall be annualized if such policy year consists of less than twelve (12) months) with a deductible of not more than One Million Dollars ($1,000,000.00) per occurrence for property damage and sixty (60) days for business interruption coverage. Boiler and Machinery Insurance. Tenant shall at its sole cost and expense, arrange for Boiler and Machinery Insurance, if not included in the all risk property insurance set forth in paragraph (e) above, providing coverage for (a) direct physical damage arising out of mechanical or electrical breakdown in a minimum amount equal to fifty percent (50%) of the full replacement cost of the Building with a deductible of not more than One Million Dollars ($1,000,000.00) per occurrence and (b) the business interruption loss (if any) that ensues in an amount each policy year equal to the reasonably expected gross revenues for such year less the -10- reasonably expected noncontinuing expenses for such year (which expected gross revenues and noncontinuing expenses shall be annualized if such policy year costs of less than twelve (12) months), with a deductible of not more than sixty (60) days. (6) Policv Terms. Each liability policy described above: (i) shall be primary, without right of contribution from any other insurance which may be carried by a party, and (ii) shall name City and its officers, agents, employees and volunteers, as an additional insured. All property insurance coverage shall be on a "(other than deductibles)/replacement cost" basis, and such insurance carried by Tenant may name financial institutions providing financing for the Building as loss payee. b. Certificates. Prior to commencement of construction of the Building, Tenant shall provide City with written evidence of the insurance required in Section 13a(l) and (4) above in the form of appropriate insurance certificates specifying amounts of coverage and expiration dates of all policies in effect. Said certificates shall indicate that no insurance will be cancelled or materially changed during the term of this Lease without thirty (30) days (ten (10) days prior written notice in the case of cancellation for non-payment of premiums) prior written notice to City. Tenant shall not perform any act that would invalidate the policies which Tenant is obliged to obtain hereunder, or would increase the premiums payable under such policies. c. Cure Right. Should Tenant at any time neglect or refuse to provide any insurance required hereunder, or should any insurance be cancelled, then City shall have the right, but not the obligation, without giving Tenant notice or the opportunity to cure, to procure insurance and the costs thereof (including, without limitation, premiums, payments under deductibles, and defense costs associated with any loss of coverage) shall be reimbursed to City by Tenant upon demand therefor. d. Policv Review. Upon written request of either party, City and Tenant agree to review and negotiate in good faith regarding the coverage amounts for all insurance policies specified in this Section and to adjust coverages as detennined to be commercially reasonable for a facility and operation similar to the Building and Improvements operated on the Site and based on then-current market and business conditions and common insurance industry practices. Notwithstanding the foregoing, the failure of the parties to agree on any proposed changes to the insurance requirements then in effect shall not excuse the parties' compliance with the insurance requirements then in effect. e. Waiver of Subrogation. All policies obtained hereunder shall have a provision mutually waiving rights of subrogation by the insurer against the Parties hereto. f. Reasonable Increases in Coverage. The amount of insurance coverage described in Section 13a shall be increased every three (3) years on the anniversary of the Lease Commencement Date in such an amount as the City may reasonably detennine based upon inflation, increased liability awards, recommendations of professional insurance advisors and other factors customarily used to detennine appropriate levels of coverage of the insurance 11086101 11m19744.4 -11- required by this Lease. City shall provide written notice to the Tenant at least thirty (30) days prior to the date of the proposed increase in insurance coverage requirements. If Tenant disagrees with City's determination of the increase in coverage, then City and Tenant shall meet and confer in good faith with each other in order to resolve their disagreement and reach agreement as to the increase. g. Bonds for Deductibles and Self-Insurance Retentions. At the option of the City, Tenant shall procure a bond guaranteeing payment of losses not covered by insurance due to deductibles or self-insured retentions approved by City. h. AccePtabilitv of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII that are authorized to do business in California. 14. ASSIGNMENT AND SUBLETIING. Tenant shall not assign or sublet this Lease or the Improvements without the prior written consent of City in its sole and absolute discretion. City may, in each case, determine, in its sole and absolute discretion: (I) whether or not such an assignment or sublease will benefit the City, its residents and users of the Premises and facilities, (2) whether the specific proposed use under the assignment or sublease will fulfill the public purposes of this Lease in providing athletic, recreational and social activities for the people of the City of Temecula, and (3) whether the proposed assignee or sublessee is sufficiently experienced and financially capable to fulfill the purposes of this Lease. 15. MORTGAGES AND OTHER ENCUMBRANCES. a. Tenant shall not mortgage, hypothecate or otherwise encumber its interest in the Premises or the Improvements without the prior express written approval of the City, which will not be unreasonably withheld. In deciding whether to approve any such mortgage, hypothecation or encumbrance, the City may evaluate the purposes of the request, the uses to which the funds will be put, and the effect of the encumbrance upon the use of the Improvements for the purposes described in Section 4a. (including the effect of foreclosure thereof followed by a further transfer of this Lease). It is expressly understood, acknowledged and agreed by Tenant that City's interest in the Premises and this Lease shall not be subject in any way to the lien of any Leasehold Mortgage (as defined below). b. As used herein, the term "Leasehold Mortgage" shall mean any mortgage, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits from the Premises, that is approved by City and that constitutes a lien on Lessee's leasehold estate created by this Lease and/or the Tenant's interest in the Improvements, and the term "Financing Party" shall mean the holder of such Leasehold Mortgage. c. During the continuance of any Leasehold Mortgage and until such time as the lien of any Leasehold Mortgage has been extinguished: (I) City shall not agree to any mutual termination nor accept any surrender of this Lease, nor shall City consent to any amendment or modification of this Lease without the prior written consent of 1 1086101 1 ln09744.4 -12- 1 1086101 Iln09744.4 (2) (3) (4) Financing Party (provided, however, that if Financing Party has not replied to a notice request such consent within thirty (30) days after the date of such notice, the Financing Party shall be deemed to have given such consent). Notwithstanding any default by Tenant in the perfonnance or observance of any agreement, covenant or condition of this Lease on the part of Tenant to be perfonned or observed, City shall have no right to terminate this Lease unless (A) an event of default shall have occurred and be continuing; (B) City shall have given Financing Party written notice of such event of default, and (C) Financing Party shall have failed to remedy such default or acquire Tenant's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by Section 15c.(4) below; provided, however, that nothing contained in this Section 15c.(2) shall prevent City from initiating the enforcement of its remedies hereunder, subject, however, to the rights of any Financing Party hereunder. The Financing Party shall have the right, but not the obligation, at any time prior to termination of this Lease and without payment of any penalty, to pay all of the rents, charges and other obligations due hereunder, to effect any insurance, to pay any Taxes to make any repairs and improvements, to do any other act or thing required of Tenant hereunder, and to do any act or thing which may be necessary and proper to be done in the perfonnance and observance of the agreements, covenants and conditions hereof to prevent termination of this Lease. All payments so made and all things so done and perfonned by a Financing Party shall be as effective to prevent a termination of this Lease as the same would have been if made, done and perfonned by Tenant instead of by a Financing Party. Should any event of default under this Lease occur, Financing party shall have thirty (30) days after receipt of notice from City setting forth the nature of such event of default, and, if the default is such that it cannot reasonably be remedied within such 30-day period or if possession of the Premises or Building may be reasonably necessary to remedy the default, a reasonable time after the expiration of such thirty (30) day period not to exceed one hundred twenty (120) days, within which to remedy such default, provided that (A) the Financing Party shall have fully cured any default in the payment of any monetary obligations of Tenant under this Lease within such thirty (30) day period and shall continue to pay currently such monetary obligations as and when the same are due, and (B) the Financing Party shall have initiated -13- l1086/011In09744.4 (5) (6) (7) within such period the curing of any default that can be remedied without taking possession of the Site and is diligently prosecuting such cure, or, in the case of a default that cannot be cured without taking possession of the Premises or Building, the Financing Party shall have acquired Tenant's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such period, or prior thereto, and is diligently prosecuting any such proceedings. All rights of City to terminate this Lease as the result of the occurrence of any such event of default shall be subject to, and conditioned upon, City having first given the Financing Party written notice of such event of default and the Financing Party having failed to remedy or commence the remedying of such default or acquire Tenant's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and within the time specified by this Section 15c.(4). If the Financing Party is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Tenant from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in Section 15c.(4) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided that the Financing Party shall have fully cured any default in the payment of any monetary obligations of Tenant under this Lease and shall continue to pay currently such monetary obligations as and when the same fall due. Provided that the Financing Party has furnished to City a request in writing for copies of default notices from City to Tenant, City shall deliver to Financing Party a copy of any and all default notices which City may from time to time give to Tenant pursuant to the provisions of this Lease. No default notice by City to Tenant hereunder shall be deemed to have been given unless and until a copy thereof shall have been delivered to the Financing Party as herein set forth. Foreclosure of a Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate created hereby from Tenant to the Financing Party through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof shall not require the consent of City or constitute a breach of any provision of or a default under this Lease, and upon such foreclosure, sale or conveyance and the Financing Party's (or any other foreclosure sale purchaser's) -14- 1108610111n09744.4 (8) delivery to City of the Financing Party's (or any other foreclosure sale purchaser's) written agreement, in form and substance acceptable to City, whereby the Financing Party (or any other foreclosure sale purchaser) assumes the Tenant's obligations under this Lease, City shall recognize the Financing Party, or any other foreclosure sale purchaser, as Tenant hereunder provided, however, that in the event there are two or more Leasehold Mortgages or foreclosure sale purchasers (whether of the same or different Leasehold Mortgages), City shall have no duty or obligation whatsoever to determine the relative priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or foreclosure sale purchasers. In the event a Financing Party becomes Tenant under this Lease or any new lease obtained pursuant to Section 15c.(8), the Financing Party shall be personally liable for the obligations of Tenant under this Lease or such new lease only for the period of time that the Financing Party remains the Tenant thereunder, and the Financing Party's right thereafter to assign this Lease or such new lease shall be subject to the applicable provisions of this Lease. In the event the Financing Party subsequently assigns or transfers its interest under this Lease after acquiring the same by foreclosure or deed in lieu of foreclosure or subsequently assigns or transfers its interest under any new lease obtained pursuant to Section 15(c)(8), and in connection with any such assignment or transfer the Financing Party takes back a mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given to the Financing Party for such assignment of transfer, then such mortgage or deed of trust shall be considered a Leasehold Mortgage as contemplated under this Section and the Financing Party shall be entitled to receive the benefit of and enforce the provisions of this Section and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Should City terminate this Lease by reason of any default by Tenant hereunder, City shall, upon written request by the Financing Party received within thirty (30) days after such termination, the Financing Party execute and deliver a new lease of the Premises to the Financing Party, for the remainder of the Term of this Lease with the same agreements, covenants and conditions (except for any requirements which have been fulfilled by Tenant prior to termination) as are contained herein provided, however, that City's execution and delivery of such new lease of the Premises shall be made without representation or warranty regarding title to the Premises or any Improvements or the priority of such new lease. Upon execution and delivery of such new lease, the Financing Party, at its sole cost and expense, shall be responsible for taking such action as shall be necessary to cancel -15- and discharge this Lease and to remove Tenant named herein and any other occupant from the Premises. Tenant's obligation to enter into such new lease of the Premises with the Financing Party shall be subject to the following conditions: (i) the Financing Party has remedied and cured all monetary defaults hereunder and has remedied and cured or has commenced and is diligently completing the cure of all nonmonetary defaults of Tenant in accordance with the terms of this Section, (ii) that if more than one Financing Party requests such new lease City shall have no duty or obligation whatsoever to determine the relative priority of such Leasehold Mortgages held by such Financing Party, and, in the event of any dispute between or among the Financing Parties, City shall have no obligation to enter into any such new lease if such dispute is not resolved to the sole satisfaction of City within ninety (90) days after the date of termination of this Lease, and (iii) that Financing Party pay all costs and expenses of City, including, without limitation, reasonable attorneys' fees, real property transfer taxes and any escrow fees and recording charges, incurred in connection with the preparation and execution of such new lease and any conveyances related thereto. 16. DAMAGE. Should any Improvements be damaged or destroyed, Tenant shall diligently, but subject to delays beyond the reasonable control of Tenant (excluding financial matters), repair and/or rebuild the same to substantially the condition in which the same were immediately prior to such damage or destruction. 17. DISCRIMINATION. Tenant shall not discriminate in the use of the Premises or in its operations thereon, including, but not limited to, membership, administration, and/or employment, against any person or class of persons by reason of race, color, creed, national origin, religion, age or sex or for any other reason prohibited by law. 18. CONDEMNATION. a. Event of Condemnation. If, during the term of this Lease there is a taking, or transfer of, or damage to all or any part of the Premises for a public use by any individual or entity, public or private, possessing the power of eminent domain, whether by a condemnation proceeding or otherwise, the rights and obligations of City and Tenant, with regard to such taking, transfer or damage shall be governed by the provisions set forth in this Section. b. "Date of Taking". As used in this Lease, the phrase "date of taking" shall mean the earliest of the following dates: l108610111n09744.4 -16- (1) the date, if any, after which the condemnor may take possession of the Premises, as stated in an order authorizing the condemnor to take possession; (2) the date a final order of condemnation or final judgment is filed or recorded, or the date a deed is recorded in the event of a transfer; (3) the date that physical possession of the Premises is taken. c. Termination. This Lease shall, as to the part transferred or taken, terminate as of the date of taking. In the event only a portion of the Premises is taken or transferred and the part remaining is not susceptible to the use to which Tenant had put the Premises prior to such taking or transfer, or if no land is actually taken but the entire property is damaged by reason of the taking of access rights so that the entire remainder is not susceptible to such use, then this Lease may be terminated at the option of Tenant by written notice. Such option to terminate must be exercised by written notice given within ten (10) business days after the date of taking. d. Abandonment. In the event the condemning agency shall abandon an eminent domain proceeding after service of any notice of termination by Tenant, as provided for in the next preceding section, then Tenant at its option, may revoke and cancel such notice by notifying City, in writing, not more than thirty (30) days after there has been an abandonment, as provided in Section 1268.610 of the California Code of Civil Procedure, or any amendment thereof. Upon an abandonment, either party hereto shall have a right to contest the condemnor's abandonment, and to recover its respective litigation costs, as provided for in California Code of Civil Procedure, Section 1268.610 or any amendment thereof. If, after the condemnor takes possession or Tenant moves from the property sought to be condemned in compliance with an order of possession, the condemnor abandons the proceedings as to such property or portion thereof, or if it is determined that the condemnor does not have authority to take such property or portion thereof by eminent domain, and the condemnor is required by law to deliver possession of such property or such portion thereof to the parties entitled to the possession thereof and pay damages as are provided for in Califomia Code of Civil Procedure, Section 1268.610, or any amendment thereof, then City and Tenant shall equitably prorate the award of such damages and Tenant shall retake possession of the Premises, and all the tenns of this Lease shall remain in operation as though never terminated. e. Right to Award. In the event that an award is made for an entire or partial taking or for damages to the Premises or any interest therein in any action in direct or inverse condemnation, the parties hereto agree that their respective rights to the award or the compensation paid shall be as follows: (1) Tenant shall be entitled to such portion of the award as may be allocated to the leasehold created by this Lease and the Improvements; 11086101 I 1n09744.4 -17- (2) City shall be entitled to that portion of the award allocated to the Premises, exclusive of Tenant's Leasehold interest therein and Tenant's interest in the Improvements; (3) Severance damages shall be provided between the parties in the ratio in which they share the award as provided in (I) and (2) above; (4) If there is an award made pursuant to a judgment, and neither party can agree as to the values to be assigned to their respective interests in such award, the values of these interests shall be determined under a proceeding governed by the California Code of Civil Procedures. Neither party will do any act or make any agreement which will impair the legal obligation of the condemnor to bear the costs of such proceedings. Both parties agree, however, that in the event such a proceeding is used, the rights of the respective parties hereto shall be governed by the formula set forth herein; (5) Any interest paid on the award in condemnation shall be divided betwe;en the parties in the same ratio as the award has been divided under the terms of subparagraphs (1) and (2) above. f. Right of Entrv. Neither party hereto shall grant a right of entry to any condemnor without the written consent of the other party hereto. g. Notice of Action. In the event either party hereto receives actual or constructive notice of an acts on the part of an entity possessing the power of eminent domain, which would cause or allow any of the provisions hereof to be invoked, then and in that event, such party shall immediately notify the other party, in writing, of such information. 19. DEFAULT. a, Events of Default. The following events shall be deemed to be events of default ("Events of Default") by Tenant under this Lease regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding which have or might have the effect of preventing Tenant from complying with the terms of this Lease: (1) Failure to pay any payment required to be made hereunder (whether to City or to any a third party), including taxes (unless such taxes shall have been bonded and are being diligently contested), within ten (10) days after the date the same is due. (2) Failure to comply with any term, provision or covenant of this Lease, other than the payment of sums to be paid hereunder, after written notice from City if Tenant (i) does not immediately commence taking all necessary and appropriate actions to remedy such failure, or (ii) does not thereafter diligently and continuously 1l086/01Iln09744.4 -18- pursue all such remedial actions, or (Hi) does not fully cure such failure within the minimum period of time reasonably required under the circumstances to achieve a cure, which minimum period shall be at least thirty (30) days after Tenant's receipt of City's written notice of such failure, in any event within ninety (90) days after Tenant's receipt of City'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. (3) Tenant abandons, vacates or surrenders the Building. (4) 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. (5) A receiver is appointed to take possession or control of the Building, or Tenant's operations on the Premises for any reason, including assignment for benefit of creditors or voluntary or involuntary bankruptcy proceedings. (6) 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 assignment, filing or other initial event. b. Remedies. Upon the occurrence of any Event of Default, City may, at its option, and in addition to and cumulatively of any other rights City may have at law or in equity or under this Lease, terminate this Lease by notice to Tenant and in conformity with procedures required hereby, or enforce, by all proper and legal suits and other means, its rights hereunder, including the collection of sums due hereunder, without re-entering or resuming possession of the Premises and hnprovements, and without terminating this Lease, in which event City shall have all remedies available at law or in equity, and should it be necessary for City to take any legal action in connection with such enforcement, the Tenant shall pay City all reasonable attorneys' fees so incurred, all without prejudice to any remedies that might otherwise be used by City for recovery or arrearages of sums due hereunder, damages as herein provided, or breach of covenant. c. Waiver. A waiver by either party of any default or breach by the other party of any provision of this Lease shall not constitute or be deemed to be a waiver of any subsequent or other default or breach. No waiver shall be binding, unless executed in writing by l108610111n09744.4 -19- the party making the waiver; waivers on behalf of City must be given by resolution of the City. 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 City's knowledge of the preceding breach at the time of accepting the rent; nor shall acceptance of rent or any other payment after expiration or termination constitute a reinstatement, extension, or renewal of the Lease or revocation of any notice or other act by City. 20. HOLDING OVER. If Tenant shall hold over on the Premises after the expiration of the term hereof, with the consent of City, either express or implied, such holding over shall be construed to be only a tenancy from month to month, terminable by either party upon thirty (30) days' prior written notice to the other, and shall otherwise be subject to all the covenants, conditions and obligations hereof, and Tenant hereby agrees to pay to City the same monthly rental as provided in this Lease; provided, however, that nothing herein contained shall be construed to give Tenant any rights to so hold over and to continue in possession of the Premises after the expiration of the term hereof. 21. SIGNS. Subject to compliance with applicable law and the City's reasonable approval, Tenant may, at Tenant's cost, place a sign on the Premises in early 2003 indicating that a YMCA will be built on the Premises. 22. ARBITRATION OF DISPUTES. Any dispute regarding this lease or the enforcement or interpretation of this Lease or whether a default has occurred shall be determined pursuant to the provisions of this Section, except that City shall retain and have the right to conduct an action for unlawful detainer in the event of a holding over by Tenant without the express written consent of City. Either City or Tenant may initiate such proceedings by giving written notice to the other stating an intention to arbitrate, the issue to be arbitrated, and the relief sought. Such arbitration shall be conducted pursuant to the provisions of the laws of the State of California then in force, with the then- existing rules of procedure to be those of the American Arbitration Association or its successor insofar as said rules of procedure do not conflict with the laws of the State of California then in force; except that the California Code of Civil Procedure with respect to the rules of discovery shall apply to any arbitration undertaken pursuant to this Section. Once notice to arbitrate has been given, City and Tenant shall jointly, within fifteen (IS) days after such notice, select one (I) arbitrator, or if they cannot agree on one (1) arbitrator then each shall select an arbitrator within twenty (20) days after delivery of said notice, and the two (2) arbitrators selected shall designate the third Arbitrator within twenty-five (25) days after delivery of said notice. The three (3) arbitrators shall convene as soon as practicable and offer City and Tenant the opportunity to present their cases. If any party to the arbitration, after being duly notified, fails to appear, participate or produce evidence at an arbitration hearing, the arbitrator(s) may make an award based solely on the evidence actually presented. The arbitrators shall, by majority vote, make 1108610111n09744.4 -20- such award and decision as is appropriate, and in accord with the terms of this Lease and applicable law, and such award shall be binding upon City and Tenant and enforceable in a court of law. The cost of arbitration shall be borne by City and Tenant as determined by the arbitrators. In the event either party fails to appoint an arbitrator or the two (2) arbitrators fail to select a third arbitrator within the time required by this Section, then upon application of either party, the arbitrator shall be appointed by the American Arbitration Association, or if there be no American Arbitration Association or it shall refuse to perform this function, then, at the request of either City or Tenant, such arbitrator shall be appointed by the then presiding Judge of the Superior Court of the State of California for the County of Riverside. NOTICE: By initialing in the space below you are agreeing to have any dispute arising out of the matters included in the "Arbitration of Disputes" provision decided by neutral arbitration as provided by California law and you are giving up any rights you might possess to have the dispute litigated in a court or jury trial. By initialing in the space below you are giving up your judicial rights to discovery and appeal, unless those rights are specifically included in this "Arbitration of Disputes" provision. If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under the authority of the California Code of Civil Procedure. Your agreement to this arbitration provision is voluntary. We have read and understand the foregoing and agree to submit disputes arising out of the matters included in the "Arbitration of Disputes" provision to neutral arbitration. City Tenant 23. GENERAL. a. Attornevs' Fees. In the event that any arbitration is commenced for the enforcement or declaration of any right or remedies in or under this Lease or for the breach of any covenant or condition of this Lease then, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs from the other party. b. Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements restrictions and conditions hereof. c. Lease Binding on Successors and Assil!:lls. Subject to Sections 14 and IS above, covenants and conditions of this lease shall extend to and be binding on and inure to the benefit of City, Tenant, and their respective successors and assigns. d. Inspection. City and City's agents and representatives may enter upon the Premises at any reasonable time for the pwpose of attending to City's business, preserving City's interests hereunder or inspecting the Premises or the Improvements. e. Relationship of the Parties. The relationship of the parties hereto is that of landlord and tenant, and it is expressly understood and agreed that City is not in any way, nor for any purpose, a guarantor or partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business, or otherwise. 11086101 1 ln09744.4 -21- f. Authoritv. The person(s) executing this Lease on behalf of Tenant hereby represents and warrants that they are duly authorized by Tenant to do so and thereby bind Tenant to the terms hereof, and that this Lease has been duly authorized and approved by Tenant. g. Time of Essence. Time is expressly declared to be of the essence of this Lease. h. Quitclaim. At the expiration or earlier termination of this lease, Tenant shall execute, acknowledge and deliver to City, within five (5) days after written demand from City, a recordable quitclaim deed or other document deemed necessary or desirable by City's counsel to eliminate Tenant's interest in the Premises and hnprovements as a matter of public . record, and Tenant hereby appoints City as its attorney-in-fact to do so in the event Tenant fails to do so. i. Construction of Lease. This Lease shall not be constructed for or against either City or Tenant, but shall be construed in accordance with the fair amending of the language used in this lease. The captions in this Lease are for convenience only and shall not be considered or referred to in resolving questions of construction. j. Governing Law. This Lease shall be governed by the laws of the State of California (without regard to conflict of laws rules). 24. SEVERABILITY. If any provision of this Lease shall be adjudged to be invalid, void or illegal, it shall in no way affect, impair or invalidate any other provisions hereof, the parties hereby agreeing that they would have entered into the remaining portion of this Lease notwithstanding the omission of the portion or portions adjudged invalid, void or illegal. 25. ENTIRE AGREEMENT/AMENDMENTS. This Lease constitutes the entire agreement of the parties concerning the subject matter hereof and all prior and counterperaneous agreements and understandings, oral or written, are hereby merged herein. This Lease may not be modified or amended except in a writing duly approved and signed by all of the parties hereto. Both parties agree that no estoppel argument an be raised during legal proceedings in order to avoid the provisions of this Section. 26. MEMORANDUM OF LEASE. City shall, upon written request of Tenant and simultaneously with the commencement of the Lease term, execute, acknowledge and record in the office of the county recorder of Riverside County, a memorandum of this Lease in the form attached hereto as Exhibit C; however, failure so to do shall not affect the validity of this Lease. 27. NOTICES. Any notice to be given or other document to be delivered by either party to the other hereunder may be delivered in person to either party, or may be deposited in the United 1108610111n09744.4 -22- States mail, in the State of California, duly registered or certified, with postage thereon fully prepaid and addressed to the party for whom intended as follows: To City: City of Temecula 43200 Business Park Drive P.O. Box 9033 Temecula, CA 92589-9033 Attn: City Manager To Tenant: YMCA of Riverside City and County 26111 Ynez Road Suite B-26 Temecula, CA 92591 Attn: Executive Director Either party hereto may, from time to time, by written notice to the other party, designate a different address which shall be substituted for the one above specified. If any notice or other document is sent by registered or certified mail, as aforesaid, the same shall be deemed served or delivered on the third business day after the mailing thereof, as above provided. 28. EXHIBITS. The following Exhibits are attached hereto and incorporated herein by this reference as though set forth in full: Exhibit A Description of Park Exhibit B Legal Description of Premises Exhibit C Form of Memorandum of Ground Lease 29. COUNTERPARTS. This Lease may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. [The remainder of this page has been intentionally left blank.] 1108610111n09744.4 -23- IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day and year first above written: CITY: CITY OF TEMECULA By: Ronald Roberts, Mayor A TrEST: Susan Jones, City Clerk APPROVED AS TO FORM: Peter Thorson, City Attorney TENANT: YMCA OF RIVERSIDE CITY AND COUNTY, INC., a California non-profit organization By: Name: Title: By: Name: Title: 1108610111n09744.4 -24- EXHIBIT A Description of Park (See attached diagram.) 1108610111n09744.4 A-I EXHIBIT B Legal Description of Premises 1I086101l1nll9744.4 B-1 EXHIBIT C Form of Memorandum of Ground Lease WHEN RECORDED RETURN TO: SPACE ABOVE TIDS LINE FOR RECORDER'S USE MEMORANDUM OF GROUND LEASE THIS MEMORANDUM OF GROUND LEASE ("Memorandum"), dated as of January 14,2003, is by and between the CITY OF TEMECULA, a municipal corporation (the "Citv") and YMCA OF RIVERSIDE CITY AND COUNTY, INC., a California non-profit corporation ("Tenant"). All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Lease (defined below). WITNESSETH: That for value received, City and Tenant do hereby covenant, promise and agree as follows: 1. Leased Premises and Date of Lease. City hereby leases to Tenant, and Tenant hereby leases from City, for the Term (as hereinafter defined), certain real property and other property which is described on the attached Exhibit A (the "Site"), pursuant to the terms of a Ground Lease between City and Tenant dated as of January 14,2003 (as may be amended, modified, extended,. supplemented, restated or replaced from time to time, the "Lease"). 2. Term. Renewal ODtion. The term of the Lease for the Site (''Term'') commences on January 14, 2003 and shall end forty-nine (49) years thereafter, unless the Term is earlier tenninated in accordance with the provisions of the Lease. The Tenant has one (1) option to extend the Term for twenty (20) years. 1108610111n09744.4 C-l 3. Effect of Memorandum. The purpose of this instrument is to give notice of the Lease and its respective terms, covenants and conditions to the same extent as if the Lease was fully set forth herein. This Memorandum shall not modify in any manner the terms, conditions or intent of the Lease and the parties agree that this Memorandum is not intended nor shall it be used to interpret the Lease and in the event of any conflict between the Lease and this Memorandum, the Lease shall control. IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of the day and year first written. CITY: CITY OF TEMECULA By: Ronald Roberts, Mayor A TIEST: Susan Jones, City Clerk APPROVED AS TO FORM: Peter Thorson, City Attorney TENANT: YMCA OF RIVERSIDE CITY AND COUNTY, INC., a California non-profit organization By: Name: Title: By: Name: Title: 11086/0111n09744.4 C-2 STATE OF CALIFORNIA ) COUNTY OF ) On 2002, before me, the undersigned, a Notary Public in and for said State, 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 executed the same in his authorized capacity, and that by his 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. Signature (Seal) STATE OF CALIFORNIA ) COUNTY OF ) On 2002, before me, the undersigned, a Notary Public in and for said State, 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 executed the same in his authorized capacity, and that by his 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. Signature (Seal) 1 10861011 In09744.4 C-3 STATE OF CALIFORNIA ) COUNTY OF ) On 2002, before me, the undersigned, a Notary Public in and for said State, 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 executed the same in his authorized capacity, and that by his 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. Signature (Seal) STATE OF CALIFORNIA ) COUNTY OF ) On 2002, before me, the undersigned, a Notary Public in and for said State, 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 executed the same in his authorized capacity, and that by his 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. Signature (Seal) 1 1086/0t 1 In09744.4 C-4 STATE OF CALIFORNIA ) COUNTY OF ) On 2002, before me, the undersigned, a Notary Public in and for said State, 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 executed the same in his authorized capacity, and that by his 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. Signature (Seal) 1108610111n09744.4 C-s Exhibit A to Memorandum of Ground Lease Site Description 110861011In09744.4 C-6 ITEM NO.4 R:ICSCAGENO~TEMNO_SHL CITY OF TEMECULA AGENDA REPORT TO: FROM: Community Services Commission ~ ~ Herman Parker, Director of Community service~ December 9, 2002 DATE: SUBJECT: Crowne Hill Park Joint Use Agreement PREPARED BY: ~X'-f'hYllis L. Ruse, Deputy Director of Community Services RECOMMENDATION: That the Commission approve the Crowne Hill Park Joint Use Agreement between City of Temecula (TCSD) and the Temecula Valley Unified School District (TVUSD). BACKGROUND: The Crowne Hill Development is conditioned to develop and dedicate two parks to the City ofTemecula. The first park, known as park site "F", has been completed and the Grant Deed was accepted by the City Council on November 12, 2002. The park site is adjacent to a future elementary school site, which will be developed in the near future by the TVUSD. At the time the school site was originally approved, requirements for State funding of elementary schools mandated that sites be at least 10 acres in size. Since that time, the requirement has been increased to twelve acres. The TCSD and the TVUSD have negotiated the use of two acres of open turf area in the newly constructed Crowne Hill Park site F for use as additional recreational space for the elementary school. A Joint Use Agreement (the "Agreement") has been prepared to clearly define the responsibilities and use of the joint use portion of the park. The term of the agreement is fortY (40) years. The Agreement provides for the TCSD, through the developer, to construct the park. Upon completion of the park and approval of the Agreement, the TVUSD shall install and maintain fencing and gates around the two-acre portion of the park to ensure safety of students. This area will provide space for school children to play games and sports for physical education purposes during school hours. During non-school hours, the joint use portion of the park shall be considered public park and open to the general population. Approval of this Agreement will provide the additional two acres of land needed by the TVUSD in order for the elementary school site to be eligible for State funding. The Agreement has been considered and approved by the Temecula Valley Unified School District Board. If approved by the Community Services Commission, staff will present the proposed agreement to the Community Services Board of Directors at their January 14, 2003 meeting. ATTACHMENT: Crowne Hill Joint Use Agreement R:\RUSEP\AGENDAS\crowne hill park joint use agmt.doc AGREEMENT BETWEEN THE CITY OF TEMECULA AND TEMECULA V ALLEY UNIFIED ~CHOOL DISTRICT FOR THE JOINT USE OF A PORTION OF CROWNE HILL PARK IN TRACT NO. 23143 THIS AGREEMENT is made and entered into as of May 7, 2002 by and between the City of Temecula, a municipal corporation ("City"), and the Temecula Valley Unified School District ("District"). In consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree as follows: 1. Recitals. This Agreement is entered into with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the parties: a. Chapter 10 of Division 1 of the Education Code, commencing with Section 10900, authorizes public school districts and cities to cooperate with one another for the purpose of authorizing, promoting and conducting programs of community recreation which will contribute to the attainment of general recreational and educational objectives for children and adults of the State. In this regard, school districts and cities may enter into agreements with each other to aid and cooperate in carrying out these objectives; b. Upon construction and dedication to City by the developer of Tract 23143, City will become the owner of certain real property within the City of Temecula, known as the site for proposed Park in Tract 23143, preliminarily referred to as Crowne Hill Park, located on the future Old Kent Road, being constructed as part of Tract 23143 in Temecula California, directly adjacent to the future elementary school preliminarily referred to as Crowne Hill Elementary School Site; c. District and City desire to jointly develop and utilize a portion of Crowne Hill Park for park, recreational and educational purposes benefiting the citizens of Temecula, and for educational purposes benefiting the students of Crowne Hill Elementary School; and d. The portion of Crowne Hill Park to be developed and used for these joint purposes is an approximately Two (2) acre turf playfield with perimeter concrete sidewalks and fences located on the Crowne Hill Park property and is depicted on Exhibit A., attached hereto and incorporated herein by this reference (hereafter the "Property"). 2. Use of Property as a School Facilitv. City hereby grants to District a license to use the Property as a school facility in accordance with the terms and restrictions as set forth in this Agreement and the ordinances, rules and regulations of the - 1 - Temecula Valley Unified School District governing the use of school facilities for education purposes. 3. Term of Aneement. The term of this Agreement shall be for a period of forty (40) years beginning May 7, 2002 and shall terminate April 30, 2042; provided, however, that this Agreement may be amended at any time by mutual consent of both parties. 4. Apportionment of Use of Property by City and District. The Property shall be used for Crowne Hill Elementary School's purposes by the District during the hours of 8:00 a.m. to 3:30 p.m., Monday through Friday except on School Holidays, and during such other hours as are required to carry out normal school purposes, including activities scheduled pursuant to the District's calendar of events, which calendar shall be prepared and sent to the City prior to the beginning of each school year. At all other times, the Property shall be used for public park purposes by the City and subject to such park rules and regulations for the use of the park as the City may enact. Because of the elevation constraints of the Crowne Hill Elementary School site, the school's fields, hardcourt play areas, and parking lot areas will not be available for public park purposes. City will limit public park activities at Crowne Hill Park to only those activities which can reasonably be supported within the Crowne Hill Park facilities and parking alone. 5. Improvement of the Propertv. The City will construct and install the turf and concrete areas on the Property at it's sole cost and expense. In constructing such facilities City shall comply with all applicable federal and state laws in connection with its construction and installation of the improvements. including the California Environmental Quality Act. The turf and concrete areas are exempt from the provisions of the Field Act under Education Code Section 17368. The District will construct and install all fencing and gates (of a type and location to be approved by the City's Director of Community Services) which may be required by the District for student security purposes during periods of the school's use of the Property. 6. City Maintenance Responsibilities. During the term of this Agreement, the City shall, at its sole expense, perform all maintenance on the Property and the improvements which are to be constructed upon the Property pursuant to the terms of this Agreement (except for the fencing and gates installed by the District), in accordance with reasonable maintenance standards and schedules approved by the City's Director of Community Services and the District's Director of Maintenance and Operations. The fencing and gates installed by the District shall be maintained by the District at its sole expense. 7. Not Used 8. Indemnification a. City agrees to hold hannless, defend, and indemnify District against all actions, claims, or demands for injury, death, loss or damages, -2- regardless of fault or cause, by anyone whomsoever (except where such injury, death, loss, or damage was solely due to the negligent acts or omissions of District, its agents, servants, or employees), whenever such injury, death, loss or damage is a consequence of, or arises out of, or is incidental to, the use or maintenance of the Property by City or any other persons or parties (other than District) authorized to so use or maintain the Property by City pursuant to this Agreement. b. District agrees to hold hannless, defend, and indemnify City against all actions, claims, or demands for injury, death, loss, or damages, regardless of fault or cause, by anyone whomsoever (except where such injury, death, loss, or damage was solely due to the negligent acts or omissions of City, its agents, servants, or employees), whenever such injury, death, loss, or damage is a consequence of, or arises out of, or incidental to, the use of the Property by District or any other persons or parties (other than City) authorized to so use the Property by District pursuant to this Agreement. 9. Defaults and Remedies a. Subject to the extensions of time as approved in writing by a party, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default (claimant) shall give written notice of default to the other party, specifying the default complained of. b. The claimant shall not institute proceedings against the other party nor be entitled to damages if the other party within fourteen (14) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy within thirty (30) days from the date of receipt of such notice. Such cure, correction and remedy shall include payment of any costs, expenses (including attorney fees) or damages incurred by the non-defaulting party resulting from the default or during the period of default. c. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. d. Any failure or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. - 3 - e. If a default is not fully cured by the defaulting party as provided in this Paragraph, the defaulting party shall b.e liable to the other party for any damages caused by such default, and the nondefaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. f. If a default under this Agreement is not fully cured by the defaulting party as provided in this Section, the nondefaulting party at its option may thereafter (but not before) commence an action for specific performance of terms of this Agreement. g. In the event litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as detennined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted. 10. Force Majeure. Except as otherwise expressly provided in this Agreement, if the performance of any act required by this Agreement to be performed by either District or City is prevented or delayed by reason of any act of God, strike, lockout, labor trouble, inability to secure materials, restrictive governmental laws or regulations, or any other cause (except financial inability) not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of delay will be excused. However, nothing contained in this Section shall excuse the prompt payment by a party as required by this Agreement or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. 11. Notices to Parties. Written notices, demands and communications among the District and City, shall be sufficiently given by personal service or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the District or City as follows: District: Temecula Valley Unified School District 31350 Rancho Vista Road Temecula, California 92592 Attention: Superintendent City: City of Temecula 43200 Business Park Drive Temecula, California 92590 Attention: City Manager -4- Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. 12. Al!reement Bindinl! on Successors. This Agreement shall be binding on and shall inure to the benefit of the successors and lawful assigns of the parties hereto. 13. Assil!llment. Neither Party shall assign or transfer this Agreement or any portion thereof without the prior written consent of the other party; provided, however, that City may assign all or part of the benefits and obligations of this Agreement to the Temecula Community Services District without further consent of the District. 14. Sole and Only Al!reement. This Agreement constitutes the sole and only agreement between District and City respecting the joint use of the Property for school and park purposes. Any agreements or representations, either oral or written, respecting the matters discussed in this Agreement pertaining to the Property which are not expressly set forth in this Agreement are null and void. 15. Time of Essence. Time is expressly declared to be of the essence of this Agreement. 16. Authoritv to Execute. Each person executing this agreement expressl y warrants and represents that he or she has the authority to execute this Agreement on behalf of his or her governmental entity and warrants and represents that he or she has the authority to bind his or her entity to the performance of its obligations hereunder. 17. Insurance. Each party to this Agreement shall carry public liability insurance in a reasonable amount satisfactory to the other party to protect itself and the other party, its officers, agents, servants, and employees, against claims for damage to persons and/or property, including death, arising from that party's use of the Property as provided in this Agreement. The form of the insurance shall be satisfactory to the other party and may include self-insurance at levels reasonably acceptable to the other party. - 5 - - IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto. TEMECULA VALLEY UNIFIED SCHOOL DISTRICT ~~~ President of School Board CITY OF TEMECULA Ron Roberts Mayor Attest: Susan Jones, CMC City Clerk Approved As to Form: ~t:~ City Attorney -6- ~ " 2 c( I- - m - % >< ILl ~ ca G) .. C( G) en :) , .,1 c! ! .- I O! ., .~ 01- 00 .cO:: uti) (/)0 ~5 ro~ -0 CC/) 0)0 Euu O)U- -z LU:) >- - uu =-1 I-I ~ O)::s c:) ~o OUU I...~ U~ ITEM NO.5 R:\CSCAGEND\lTEMNO.SHL CITY OF TEMECULA AGENDA REPORT TO: FROM: Community Services Commission Herman D. Parker, Director of Community services{iiJ December 9, 2002 DATE: SUBJECT: Election of Chairperson and Vice Chairperson - Community Services Commission PREPARED BY: Gail Zigler, Administrative Secretary RECOMMENDATION: That the Community Services Commission: 1. Elect a member from the Community Services Commission to serve as Chairperson from November 1, 2002 to October 31, 2003. 2. Elect a member from the Community Services Commission to serve as Vice Chairperson from November 1, 2002 to October 31, 2003. DISCUSSION: The term of Chairperson and Vice Chairperson for the Community Services Commission is for one (1) year beginning November 1 and ending October 31 of any given year. Therefore, it is necessary for the Commission to select two members to serve as Chairperson and Vice Chairperson for the upcoming new term RR:\CSCAGEND\ELECTN.02.doc