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HomeMy WebLinkAbout08-05-2014 Item 25 Report Boys and Girls Club Sublease AgreementME8TING DATE: CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT August 5, 2014 C(d010•`6G AGENDA ITEM NO. 26 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute the Second Amendment to the Lease by and between the City and the Boys and Girls Club of Greater San Diego, Inc., consenting to a Sublease Agreement between the Boys and Girls Club and Integrity Charter School and a Sublease between the Boys and Girls Club and Episcopal Community Services for the city -owned land and building located at 1430 "D" Avenue (Housing, Grants, and Asset Management) PREPARED BY: A ejandro DEPARTMENT: Housing, Grants, & Asset PHONE: 619 336-4266 EXPLANATION: (Please see attached background report). APPROVED BY Management FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: There are no direct financial impacts to the City. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Approve the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 1. Background Report 2. Amended Lease Agreement 3. Episcopal Community Services Sublease Agreement 4. Integrity Charter School Sublease Agreement `abx4 -"Q Attachment 1 Background Report In 2011„ the City of National City and the Boys and Girls Club (BAGC) entered, into a 20-year lease agreement,foruse of'`the"City-owned land!and building located: at'1430 D Avenue for the purposes of maintaining a clubhouse and promotingthe physical, mental, and :Moral well-being of the boys and girls, of the City of National City, and for boys and girls in the immediate vicinity. On. August 16'h, 2011 the City Council adopted Resolution.2011-183, which approved the ,20;yearlease ::agreement with the Boys and Girls Club. The BAGCpay $1 per year for rent. In order to assist the Boys and Girls: Club with their' operating costs, the City is willing to allow two (2) temporary and non-exclusive sublessees,. integrity Chart School(Integrity) and Episcopal Community Service (ECS);Onto 'the,city-owned land and building:located at ,1430 D Avenue. Both Integrity and ECS would sharethe land'and facility with theBAGC. According to section six ofthe 20-year lease agreement, any subletting requires -the, City"s prior written consent lntegntt; and ECS's monthjy rent would be paid directly.to:the'BAGC. The'City is entitled to the net income, if any,=up'to the amount of the two subleases. Moreover) the Cityshall,havetheoption to require the BAGC to operate and maintain the future Kimball Park Skate Park. If'exercised„the City shall' construct the Kimball Park Skate Park at its own cost and coordinate with the-BAGC to "develop a secure facility, whlch,would allow the BAGC to controlaccess. Second Amendment to'20-YearLease Agreement The Second Amendment. woulkt allow subletting the city -owned land and building located' at 1430 1/.Avenue ,to two (2) sublessees Integrity°Charter School and Episcopal Community Services. Both sublessees would_share' t. he landandbuilding.withtheBAGCAnyrevenuethatexceedsth BAGC's annual operating costs shall be paid to the City. Inntegrity ChartSchoolSublease Agreement Terms • The Sublease is fora two (2) year term with a one (1) year option to extend. Integrity will use six (6) identified:classrooms for kindergarten:through second grade, Furthermore, Integrity'will have access to the BAGC's bathrooms, computer lab, and gymnasium. The basemonthty rent is$S,000 per:month for the ten,(10)' months.they are,using the sites which would conform as closely as possible to the school scheduleof.the National City School District. in addition'to the monthly. rent, Integrity will pay the BAGC $30 per student:for those students who are,not eligrb)e in the'after school program:, Summary; of'lease terms: • $5,000.per nienthto, 'the,BAGC' �. '"!2 years;with'a 1 year option • '$30 to the. BAGC for every nonafter=school program eligible= student :Egiseobal Community Services- sublease:Agreement.Terms 'The Subiease.is fora five, (5) 'year term with an additional:five (5)"year option to extend. ECS will use the Youth'.Center, Youth Office; storage -and restrooms, and common areasin order to' operate a Head Start Program which is a comprehensive.chiid development program serving children from birth to five years Of. The base monthly, rent is.$3,534.30. Summary.of iease"terms: • $3,534.30.0'er month to.the.BAGC • 5 year term,with a 5year optibh Recommendation• _ Staff' recommends approving the following:. the second amendment to the 20-year lease agreement'whichwouid allow subleasing; the sublease agreenientwith 'Integrity Charter School; and'the sublease agreement with Episcopal Community Services.,' Attachment 2 SECOND AMENDMENT TO LEASE BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, INC. THIS SECOND AMENDMENT OF LEASE BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, INC. ("Second Amendment") is made as of this 5th day of August, 2014 by and between the CITY OF NATIONAL CITY ("Lessor") and the BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, a California nonprofit corporation ("Lessee" or the "Club"). Recitals A. Lessor is the owner of certain real property located at 1430 "D" Avenue, National City, situated in San Diego County, State of California (the "Property"). B. Lessor and Lessee executed a lease on effective August 16, 2011 (the "Lease"). Said Lease was •amended by a First Amendment dated May 6, 2013. C. Pursuant to Section 3 of the Lease, the Leased Premises was leased to the Club to operate a Boys & Girls Club, andto promote the physical, mental; and moral well-being of the boys and girls of the City of National City and territory adjacent thereto, and to provide such means of education, wholesome recreation and proper guidance as may seem most likely and desirable for the accomplishment of the purposes set forth, in the Lease. D. The Club now desires to sublease portions of the Leased Premises for use by a"public Head Start Program open to the children of National City, at times and/or in areas the Club is not using for Club purposes. The public Head Start Program extends services to pre-school age children of National City who are currently not being served by the Club. E. The Club also desires to sublease portions of the Leased Premises for use by a public Charter School open to the children of National City, at times and/or places when the Club is not using the Leased Premises for Club purposes. F. Section 6 of the Lease°permits subletting of the Leased Premises only with the prior written consent of the Lessor. G. Lessor and Lessee now desire to clarify the terms and, conditions of use of the Leased Premises and to modify the Lease so that the two (2) subleases referenced in Recitals D and E can be entered into. NOW, THEREFORE, in consideration of the mutual promises and covenants of the respective parties hereto, it is mutually agreed as follows: Page 1 of 6 Section 3. Section 3 of the Lease shall be amended by the addition of the following: "3.1 The Club acknowledges and agrees that the Property is located on public parkland, and as such the Property may or may not be used for certain purposes. 3.2 The City hereby consents to Lessee's sublease (attached as Exhibit A) of a portion of the Premises for the operationof a public Episcopal Community Services Head Start Program conditioned upon the understanding and agreement of the Club that the sublessees use is temporary, non-exclusive, operates atsuch times as the Club does not offer programming in certain areas of the Leased Premises and is consistent with and complementary to the primary purpose stated in Section 3 of the Lease. 3.3 The City hereby consents to Lessee's sublease and first amendment . (both attached as Exhibit B) of a portion of the Premises for the operation of a public Integrity Charter School conditioned upon the understanding and agreement of the Club that the sublessee's use is temporary, non-exclusive, operates at such times as the Club does not offer programming in certain areas of the Leased Premises and is. consistent with and complementary to the primary purpose stated in Section 3 of the Lease. 3.4 In the event there is any successful interim, or final order entered by a court of competent jurisdiction relating to a challenge of the use of the Premises by either or both sublessees, Lessee shall cause the sublessee(s) to vacate the premises within a reasonable amount of time or as otherwise provided by court order. 3.5 In the event any possessory interest taxes are assessed against the Lessee or the sublessee(s), the City shall not be responsible for the payment thereof and the Club and/or the sublessee(s) 'hall be responsible for the tax assessment, if any. This provision is in addition to .Lessee's obligation under Section 28 of the Lease." 2. Section 5. Section 5 shall be amended to add the following: "In the event the Lessee sublets the premises with the written consent of Lessor, Lessor shall be entitled to the net income, if any, up to the amount of the sublease. A certified annual income report, in the form approved by the City, and payment, if any, shall be due no more than 90 days from the City selected 12 Page 2 of 6 Attachment 2 month fiscal reporting period." 3. Section 11. Section 11 shall be amended by the addition of subsection a. as follows: "a. National City Skate Park. The Lessor currently operates and maintains a temporary skate board part located in Kimball Park. The Lessor anticipates, a permanent skateboard park to be constructed and located in Kimball Park ("Kimball Park Skate Park"). Lessee agrees to operate and maintain all or a portion of the Kimball Park Skate Park, at the Lessor's option, subject to the terms and conditions of an amendment to the Lease as discussed below. If Lessor exercises this option, Lessor shall construct and pay for the construction of the skateboard part facility and work with the Lessee to build a secure facility allowing Lessee the ability to control access to the Kimball Park Skate Park. Lessee's operation and maintenance of the Kimball Park Skate Park shall be subject to a maintenance and operation amendment to the Lease." 4. Section 13. Section 13 shall be amended by the addition of a new Subsection b.iii. as follows: Any and all liability, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses, including without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants, which may arise out of or be in any way connected. with Lessee's sublease of the Premises or sublessee's use of the Premises. Lessee understands and agrees that this obligation is in additionto the indemnity obligations in Section 13.b.i. and is to be construed as a broad indemnity provision in favor of the indemnitees." In all other regards, the Lease dated August 16, 2011 as, amended by the First Amendment dated May 6,, 2013 shall continue in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Lease to be executed as of the date specified above. Lessor: The City of National City By: Ron Morrison, Mayor Lessee: Boys & Girls Clubs of Greater San Diego; Inc. Page 3 of 6 By: Danny Sherlock, President and CEO By: Board Chairman APPROVED AS TO FORM:? Claudia G. Silva, City Attorney Q.\LBB\real estate\Boys' and Girls' Club\National City \Lease Second Amendment -revised 7-29-14-2.wpd Page 4 of 6 Attachment 3 . SUBLEASE This.Sublease.("Sublease") is dated May 1, 2014,and is effective as of the latter of the signature dates below ("Effective Date') between the BOYS & OIRLS CLUBS OF GREATER SAN DIEGO,a California nonprofit corporation (the "Club" or "Landlord") and EPISCOPAL COMMUNITY SERVICES,.a California nonprofit corporation ("EC Services" or "Subtenant") (each a "party" and collectively the "parties"). Recitals A. The Club leases the real property located at 1430 "D Avenue, National City, California 91950, County of San Diego, State of California (the "Property" sometimes referred to as the 'Payne Family Branch"), as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, from the City of National City ("City"), which property is improved with a "Building". A true and correct copy of said Lease between the Club anct the City of National City is attached, hereto as Exhibit "B" and incorporated herein by reference. B. Pursuant to the Lease between the City and the Club dated August 16, 2011, Club is granted the right to sublet a portion ofthe Property,Inoludingthe Building on the Property, only with the prior written consent of the. City. Therefore, the effectiveness of this Sublease is expressly made contingent upon the Clubs receipt of the City's written 'consent, if written consent is required by the City, as set forth below. C. EC Services desires to sublease a portion of the Property (the "Premises" as defined below) for the purpose of operating a Head Start Program butmay not begin operating the Head Start Program until (i) certain improvements have been made to outfit. the Premises for the Head Start Program, including the installation of a partition between the classrooms in the Premises and a door to provide access between the kitchen and the classrooms, as depicted on the Floor Plan attached hereto as Exhibit "C" ("Front -End Improvements") and (ii) all permits and licenses required to lawfully use the Premises for the head Start i?rogram ("Program Approvals") have been obtained and are in force; or waived by EC Services. 11 Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES .. NATIONAL CITY BRANCB Attachment 3 D. The parties intend that BC Services have access to the Premises after the Effective Date of this Sublease to begin obtaining Program Approvals and readying the Premises for operation of the Head Start Program, but that Rent will not be payable or begin to accrue until the Commencement Date: E. The Club desires to sublease a portion of the Property to EC Services for said, purpose. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Subleased Premise& 1.1 Sublease Contingent Upon and Subject to Approval by City. Subject to the written approval of this Sublease by the City, the written consent hereto by the City and to the provisions of the Lease between the City and the Club, the Club hereby subleases to EC Services and EC Services subleases from the Club, upon all of the terms and conditions set forth m this. Sublease, exclusive use of the Youth Center, Youth Office, storage and restrooms as listed and/or depicted on the Floor Plan attached hereto as Exhibit "C" and incorporated herein by reference (the "Premises") as well as non-exclusive use of the common areas as described below. EC Services shall have no right of possession of any remaining, portions of the teal property or improvements located thereon. This Sublease subordinates to ,the applicable covenants and, conditions of the Lease, as amended from time to time, between the City and the Club. In the event of conflict between the provisions of this Sublease and those of the Lease, as amended between the City and Club, the Lease, as.amended -between the City and the Club shall control. L2 Sublease Contingent Upon and Subject to EC Service's Ability to Obtain Required Licenses and Approvals. The effectiveness of this Sublease is contingent upon the ability of EC Services to obtain the required license and environmental approvals; clearances and certifications at the sole cost and expense of EC Services, .In,the event EC Services does not,. after good faith attempts, obtain all required licences, environmental approvals, clearances and. certificdtions, any rent payments made shall be• reimbursed to EC Services and, no further payments shall be required. Except, any modifications or alterations made 3o the Premises in anticipation of occupation by EC Services shall returned to 'the condition prior to the modification or alteration, at the sole and absolute discretion of the Club. Sublease•BOYS' AND GIRLS' CLUBS. AND EC SERVICES NATIONAL CITY BRANCH Attachment,3 1.2 Acceptance of Premises, 1.2.1 By signing this Sublease, EC Services represents and .warrants that is has independently inspected the Premises and made or will make all tests, investigations; and observations necessary to satisfy itself of the condition of the real property. EC Services agrees it is relying solely on such independent :inspection, tests, investigations, and observations in making this Sublease. EC Services further' acknowledges that the Premises is in the condition called for by this Sublease and EC Services does not hold Club responsible for any defects in the real property. EC Services acknowledges that neither Landlord nor Landlord's agent, if any, has made any representation or warranty as to the-present`or future suitability of the Premises or the building for the conduct of EC Services"business. 1.2.2 California Civil Code Section 1983. Disclosure. EC Services further acknowledges that the Property has not been inspected by a Certified Access Specialist (CASp)and it has not been determined or reported whether the Property is in compliance with California Civil Code Section 55.53 to meet all applicable construction related access standards. The Property has not been reviewed for' any ecologically sensitive areas including but not limited to wetlands, flood plains, aquifers or conservation areas. 2. Term; Commencement Date, 2.1 The term ('Term of this Sublease is for period of fifty-nine,(59) months and shall commence on the commencement Date defined in Paragraph 2.2 below and shall expire on June 30, 2019 unless sooner terminated under thetterms of this Sublease. 22 Commencement Date. The Commencement Date of this Sublease shall be the earlier of completion of the Front -End Improvements and Program Approvals or the date the Premises is delivered to EC Services, but in no event later than August 11, 2014. • 2.3 Option to Extend Term. As long as EC Services is not in default of any material term or condition' of this Sublease, upon written approval of both parties, EC is granted the option to extend the Term of this. Sublease for an additional term of five (5) years ('Extended Term"), on the same terms and conditions as pm ided in this Sublease. EC Services shall exercise its option to ext�nd, if at all, by deliverinngg written notice to Club of such election ("Notice of Election") nd later than December 31, 2018. The Extended Term shall become effective upon the written approval by the Club. In addition, the Extended Term shall be subject to renewal of the charter petition, which is controlled by the San Diego Unified School District. Sublease -BOYS' AND GIRLS' CLUBS' AND EC SERVICES NATIONAL CITY BRANCH 3 Attachment 3 3. Rent. Rent and Additional Costs paid to the Club by EC Services shall be referred to as Monthly Consideration. 3.1 pase Rent. EC Services shall pay to Club a Base Rent as minimum monthly rent, without deduction, setoff, prior notice, or demand the sum. of $3,534.30 per month (`.`Base Rent'). Monthly installments of Base Rent shall be payable monthly, in advance, on the first day of each month'. The first month's rent shall be paid uponexecution of this Sublease. The rent for any partial month shall be prorated on the basis of a thirty (30) day month. Rent shall be paid in lawful money of the United States to Club at the address set forth on the signature page of this Sublease or to such other person or at such other place as Club may designate in writing; 3.2 Rent increase. The. Base Rent shall be increased annually' on the, anniversary of the Commencement Date according to the All Urban Consumer Price Index for San Diego County, published by the United States Department of Labor, Bureau. of Labor Statistics ("Index"), which is published for the date nearest the date of the anniversary of the Commencement. Date of this Sublease as compared to the date immediately preceding the month in which the termof this Sublease commenced ("Beginning Index"): The Rent shall in no event ever decease below the prior year's Base Rent. 3.3 Additional Costs. In addition to the Base Rent, EC Services shall pay to the Club the following additional costs: 3.3.1 Utilities., EC. Services shall pay to the Club 15% of the costs of the utilities, including water, gas and electrical for the Property. 3.3.2 Other Unkeep. EC Services shall pay to the club 18°4 of the cost of security, exterminator expenses and landscaping costs for the Property. 3.3.3' Payment of Additional Costs. Unless otherwise agreed in writing, EC Services shall pay all Additional Costs then due with the next monthly Rent installment. Additional Costs shall be estimated from•the prior year's average monthly costs based on the. Club's fiscal year which runs from July 1 through June 30 of each year ("Fiscal Year"). The difference between the estimated actual cost of utilities and the estimated paid per month will be reconciled by the Club quarterly and paid by or credit to EC Services on'a Y el quarterly basis, within thirty (30) days of the date of said bill. EC Sery ces acknowledges and agrees that the Additional Costs after the Commencement Date may i crease from the prior year's costs as the Premises where the Head Start Program will be operated may not have been, used to the extent anticipated by this Sublease. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH. 4 Attachment 3 3.3.4 EC Services shall be responsible for reimbursing the Club for the first $5,000charged to the Club for architectural costs associated with redesigning plumbing for and the construction/replacement:cost of the adult toilets with child toilets. • 4. Use and. Obligations of Parties. 4.1 Use.,. EC Services shall use those portion of the Club's Property subleased to EC Services herein solely for EC Services' Head Start Program, with a maximum limit of forty-five (45) pre-school children, located on the subleased Premises at any one time, and for no other purpose. 4.2 Compliance With Law: Rules and Regulations, 4.2.1 Compliance with Law. EC Services shall comply with and observe all statutes, ordinances, regulations, orders and decrees of federal, state and city governments, or any departments, bureaus or agencies thereof, and all covenants and restrictions and requirements regulating the use of the Premises, whether now in force or promulgated in the future, Any and all expense resulting from such compliance shall be bom by EC Services. EC Services shall not use nor permit the use of the Premises' in any manner which will tend to create waste or a nuisance or shall tend to disturb any other Subtenants in the building in which the Premises is located (the "Building"). 4.2.2 Rules and Regulations. EC Services agrees that it will abide by, keep and observe all reasonable rules and regulations which the Club may make from time to time for the management, safety, care and cleanliness of the Premises, the Building and the surrounding areas as well as for the convenience of other occupants and Subtenants of the Building, if any. The violation of any such rules and regulations shall bedeemed a material breach of this; Agreement by EC Services.. 43 Obligations of EC 4.3.1 EC Services shall obtain all required regulatory certificates necessary for the operation of the Head Start Program on the, Premises. • 4.3.1.1 In addition to any other requirements hereunder, EC Services shall provide the Club with copies of all licenses, regulatory permits and the required documentation needed to maintain currency, including but not limited to proof of insurance and other documents reasonably required by Club and/or by the City. Sublease -BOYS' AND GIRLS' CLUBS AND +EC'SERVICES NATIONAL CITY BRANCH 5 Attachment 3 4.3.1.2 EC Services shall comply with the regulations, policies, guidelines and requirements, including OMB Circulars No. A-95, A-110 and FMC 74-4, as they relate to the application, acceptance and use of federal •funds for federally assisted projects. 4.3.1.3 EC Services shall comply with E.O. 11246, ."Equal Employment Opportunity", as amended by E.O. 11375, "Amending Executive Order 11246 to Equal Employment Opportunity", and as supplemented by regulations. at 41 CFR Part 60, "Office of Pederal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor". 4.3.1.4 Any contractor and subcontractor hired by EC Services shall fully comply web Title VII of the Civil Rights Act of 1964,'as amended, the California Fair Employment Practices Act, and any other Federal and State laws and regulations hereinafter enacted. 4.3.1.5 EC Services shall comply with the Copeland "Anti - Kickback" Act (18 U.S.C. 874), as supplemented by the Department of Labor Regulations (29 CFR Part 3, "Contractors and subcontractors on public building or public work financed in whole or in part by loans or grants from the United States"). • 4.3.1.6 EC Services shall comply with the provisions of the Hatch Act, which limits the political activity of employees. 4.3.2 EC. Services shall provide all staff, equipment and supplies, including educational curriculum, required to meet the specified requirements' -of the Head Start Program. 4.33 EC Services shall, at EC Services' sole expense, provide janitorial services to and keep in good order and condition the Premises and al! parts thereof. EC Services shall not cause or permit any waste or injury to the Premises and shall keep the Premises free from any and all objectionable noises, odors, rubbish and debris inconsistent with the proper operation of the Head Start Program. 4.3.4. EC Services shall provide meals and/or • snacks for Head Start children in itccordance with the Child and Adult Care Food'Progranis (CACFP). 4.3.5 EC Services shall provide the program resources necessary to maintain compliance ofthe Premises with Community Care Licensing (Title XXII of the Health and Safety Code), and Head Start Performance Standards. Sublease -BOYS' AND GIRLS' CLUBS AND EC'SERYICeS NATIONAL CITY BRANCH Attachment 3 4.3.6 EC Services shall provide Head Start enrollment preference to the children or family of Club Members to the maximum extent allowed by the terms of its grants. 4.3.7 As a material condition of this Agreement EC Services shall be subject to and abide by any requirements and provisions contained in the City Lease dated August 16, 2011. In addition, EC Services acknowledges that this Agreement is subject to the City's approval of the hours of operation of EC Services. 4.3.8 Taxes. 4.3.8.1 axes, Subtenant recognizes and understands that this Sublease may create a possessory interest subject to property taxation, and that Subtenant may be subject to the payment of real property taxes levied on such interest. EC Services' further agrees to pay any and all property taxes assessed during the term of this Sublease, pursuant to Section 107 and 107.1 of the Revenue and Taxation Code, against Subtenant's possessory interest in the Premises. Provided, however, Subtenant shalt have no obligation to pay taxes, whether real property or possessory interest, properly assessed to the owner of the, Property, the Club or the Club's interest under the Lease. 4.3.8.2 Taxes, EC Services shall pay before delinquency all taxes; assessments, license fees, and other charges ("Taxes") that are levied and assessed against EC Services' personal property installed or located in or on the Premises, if any, and that become payable during the Term. EC. Services shall furnish the Club with satisfactory evidence of these payments,if any, 'If any Taxes on EC Services' personal property are levied against the Club or the Club's property, or if the assessed value of the Premises or Building is increased by the inclusion of a value placed on EC Services' personal property, and if the Club pays the Taxes on any of these items or the Taxes based on the increased assessment of these items, EC Services, on demand, shall immediately reimburse the Club for the sumof the Taxes levied against the Club and attributable to EC Services' personal property. The Club shall have the right to pay these Taxes regardless of the validity of the levy. 4.4 Responsibilities of the Parties Collectively. 4.4.1 The Parties shall work together toward the mutual goal of increasing the growth and development of pre-school age youth: 4.4.2 The Parties shall be responsible to ensure that prior to their individual performance of this Agreement, the Parties' employees, contractors and/or agents assigned to work at the Property are fingerprinted at a California' State recognized facility for fingerprint clearance, as required by Title 22, community Care Licensing, State of California. Sublease -BOYS' ANDGIRLS'-CLUBS. AND EC SERVICES. NATIONAL CITY BRANCH 7 Attachment 3 The Parties agree not to place, at, the Property any of its employees, contractors or agents who have a conviction of a'serious or violent felony, or sex offense, or controlled substance offense. as defined by Title22, Community Care Licensing, State of California Upon request by either Party to the other, evidence of its compliance with this Section shall be provided in a commercially reasonable time frame. 4.4.3 Cooperate with the each other to ensure effective communication, optimum utilization ofresources and the achievement of program goals and objectives. 4.4.4 Each Party shall establish safeguards to prohibit employees from using their positions for a purpose that is or gives the, appearance of being motivated by a desire for private gain for themselves or others, particularly those, with whom, they have family,. business or other ties. 4.4.5 The Parties acknowledge and agree that they shall not publish, or use each other's name in any advertising, sales, promotional or other, publicity materials without the prior written, consent of the other party. 5. Maintenance. Repair and AlterationofPremises. No material alterations, improvements, installations or modifications may be made to the Premises without the prior written consent of -the Club and if required, bythe City. 5.1 Club's Obligations For Repair and Maintenance, Club shall repair and maintain in good condition those portions of the Premises as required by the Lease with the City of National City. To the fullest extent allowed by law, EC Services hereby expressly waives the benefits of any statute now or hereafter in effect including, but not limited to, Civil. Code Sections 1941 and 1942, which would otherwise give EC Services the right to make repairs and deduct the cost thereof from rent or the right to tenninate,this Sublease because of Club's.failure. to keep the Premises in good order, condition and repair. 5.2 EC Services's Obligations For Repair and Maintenance. Subject to Club's obligations in Section 5.1 above and to the City's obligations under the Lease and ordinary wear and tear; damage due to casualty and condemnation as set forth below, at all times during the Term,; EC Services' at EC Services' sole expense, keep in good order, condition and repair the Premises. All operatidn, maintenance, repair and replacementshall be made in compliance with all applicable laws and governmental regulations. If EC Services fails to perform EC Services' obligations under this Section 5.2 theY Club may, at Club's sole option, enter the Premises and perform such obligations on EC Services' behalf and put the Premises or any part thereof in good repair. The cost therefor, together with interest thereon at the maximum rate then allowed by law, shall be immediately due and payable by EC Services to the Club. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY $RANCH 8 Attachment 3 5.3 Common. Areas, Common areas, ('Common Areas') means all areas and facilities outside the Premises and withinthe exterior boundaries of the real property on which the Building and. Premises are located and which are for the general use and convenience of EC Services and other Subtenants of the Building. Common Areas include, without limitation, sidewalks, entrance ways, service areas, patios, landscaped areas, hallways, public restrooms, stairways, parking areas, driveways, roadways, loading areas, 'elevators, and hallways. Club. shall repair and maintain the Common Areas in good condition. Club may establish and enforce reasonable rules and regulations concerning the Common Areas. Further, Clubmaytemporarily close any of the Common Areas for maintenance or repair purposes. Club may select a person or organization to maintain and operate any of the Common Areas. ChM shall also have the right to make changes to the Common Areas including, without limitation, changes inYhe location of driveways, entrances,. exits and parking spaces. 5.5 Alterations. Additions and improvements, EC Services shall not make any alterations, additions or improvements to the Premises or the Building without the prior written consent of Club and the City, if required under the Lease. If such consent is granted, any such alteration, addition or improvement shall be made in accordance with all applicable federal, state and municipal laws, rules and regulations as well as all covenants and restrictions. This Section shall specifically include carpeting, window coverings,: airlines, power panels, electrical distribution systems, lighting fixtures, space heaters, air conditioning, plumbing, cabinets and, fencing. If Club grants such consent, Club may require EC Services to remove any and all such alterations, additions or improvements at the expiration of the Term and restore the Premises and/or the Building to its condition as of this commencement of this. Sublease. If Club does not require such removal and restoration, all alterations, additions, and improvements shall become the property of Club and remain upon and be surrendered with, the Premises at the expiration of the Term. EC Services shall pay, when due, all claims for labor or materialsfurnished or alleged to have been furnished to or for EC Services at or for use in the Premises or the Building, which claims are ormay be secured by any mechanic's or materialmen's lien against the Premises, Building or any interest therein. Club may also require EC Services to provide Club, at EC Services' sole cost and expense, a lien and completion bond in an amount equal to 1 1/2 times the estimated cost of such alterations, additions or improvements to insure Club against any liability for mechanic's and materialmen's liens and to insure completion of the work. 'The, bond shall meet the requirements of Civil Code Section 3143. If EC Services shall, in gond faith, contest the yalidity of any such claim, lien or demand, then EC Services shall, at its sole e:pense,,defend itself and Club against the same and shall pay and satisfy any such adverse judgement that may be -rendered thereon before the enforcement thereof against the Club or the Premises, upon the condition that if Club shall require, EC Services shall fumish to Club a surety bond satisfactory to Club in an amount equal to such contested lien, claim or demand indemnifying Club against Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH . 9 Attachment 3 liability for the same and holding the Premises free from the effect of such lien, claim or demand, In addition, Club may require EC Services to pay Club's attorneys fees and costs of participating in such action. EC Services shall give Club not less than ninety (90) days written notice prior to the commencement of any work in the Premises, and Club shall have the right to post notices of nonresponsibility in the Premises. Any_ proposed alterations, additions or improvements shall be presented to Club in written form with detailed plans. If EC Services makes any alteration, addition or improvement without the prior written consent of Club and the City, the Club may require EC'Services'to remove any or all of the same. 6. Insurance and Indemnity, 6.1 Insurance. 6.1,1 EC Services' Liability Insurance. EC Services shall, at EC Services' sole expense, obtain and keep in force during the Term of this Sublease a policy of public liability insurance including combined single limit bodily injury and property damage, insurance inswing the Club, the City and EC Services against any liability arising -out of the ownership, use, occupancy and maintenance of the Premises and all areas app teur6n ni ant thereto, Such insurance shall be a combined single limit policy in an amount not less than Two Million Dollars ($2,000,000.00) per occurrence. The policy shall insure performance by EC Services of the indemnity provisions of Section 6.2.Insurance required hereunder shall be with companies holding a general policy holders rating of at least A plus, or such other rating as may be required by the Club and the City, No policy shall be cancelable or subject to reduction in coverage or other modification except after thirty,((30) days prior written notice to Club. EC Services shall not do or permit to be, done anything which will invalidate any insurance policies required in this Section 6. All policies of insurance shall name Club and City (and at Club's option any additional parties designated by Club) as an additional insured. The limits of the Insurance shall not, however, limit the liability of EC Services hereunder. Certificate of Insurance and such policy showing Club and the City as an additional insured shall be provided to Club and the City within ten (10) days of execution of this Sublease and each time said policy isrgnewed. 6.1.2 EC Services' Failure to Obtain Insurance. If EC Services fails to procure and maintain any insurance required by Section 6.1.1, Club may, but shall not be required "to, .procure and maintain such Insurance, EC Services shall immediately reimburse Club for all costs therefor together with interest thereon at the maximum rate then allowed by law. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 10 Attachment 3 6.1.3 Increase of Insurance: EC. Services shall not operate, occupy, maintain, or use the leased portions of the Property in such a manner as to resultin cancellation of the Club's insurance or results in an increase of the Club's liability and/or property damage insurance. In the event that the Club's insurance is increased solely by reason of EC Services' use, occupancy, maintenance, or operation of the leased premises, then EC Services shall promptly reimburse the Club for such increased cost upon demand by the Club. . EC Services acknowledges that it shall have the sole responsibility for maintaining property damage insurance on its fixtures and equipment and other personal property located at the Premises. 61.4 Club's Insurance. Club at its sole cost and expense shall procure and maintain during the Term, commercial General Liability Insurance in an amount not Tess than $2,000,000 per occurrence, Coverage shall include but shall not be limited to coverage for bodily injury, loss of life or property damage occurring in or about the Building, the Common" Area or the Premises. The policy shall name EC Services as an additional insured and shall cover Club's indemnity obligations under Section 6.2.2 below. The Club shall deliver a copy of such policy with in ten (10) days of execution of this Sublease and each time said policy is renewed. 6.2 Indemnity. 6.2.1 EC Sevices' Indemnitv.EC Services shall indemnify and hold the Club and the City harmless from and against any and all claims arising from EC Services' use of the Premises, or from the conduct of EC Services' business or from any activity, work or thing done, permitted or suffered by BC Services in or about the Premises and the Property. EC Services shall further indemnify and hold Club and the City harmless from andagainst any and all claims arising from any breach or default in the performance of any obligation of EC Services under this Sublease or arising from any negligence of the EC Services or any of EC Services' agents, contractors or employees and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If any action or proceedingis brought against Club by reason of any such claim, EC Services, upon notice from Club, 'shall defend the same at EC Services' expense by counsel satisfactory to Club. EC Services, as a material part of the consideration to Club, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises arising from any cause and EC Services hereby waives all claims in respect thereof against Club. The indemnification provisions contained herein shall survive the termination of this Sublease with respect, to any claim or liability occurring prior to such termination. 6.2.2 Club's Indemnity, Club hereby indemnifies and agrees to hold EC Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 11. Attachment 3 Services harmless from, and to defend EC Services against any and all claims of liability for any injury or damage to any person or property occurring as a result of gross negligence or willful misconduct on the partof the Club, its agents; contractors or employees:' The indemnification provisions contained' herein shall survive the termination of this Sublease with respect to any claim or liability occurring: prior, to such termination. 6.3 . Exemption of Club from Liability, EC Services hereby agrees that the Club, and the City shall not be liable for injury to EC Services' business or for any loss of income therefrom or for damage to the goods, wares, merchandise or other property of EC Services, EC Services' employees, invitees, customers or any other person in or about the Premises and the Property. Further, the Club and the City shall not be liable for any injury to EC Services, EC Services' employees, agents or contractors whether such damage or injury is caused by or results from fire, steam,electricity, gas, water or rain or from breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or Lighting fixtures, or front any other cause, whether the damage or injury results from conditions arising upon the Premises or upon other portions of the Property or from other sources or places and regardless of whether the cause of damage or injury or the means of repairing the same is inaccessible to EC Services, Club shall not be liable for any damages arising from any act or neglect of any other Subtenants of the Property. 7. ) amaeeorDestruction. 7.1 Partial or Total Damage or Destruction of Premises, 7.1.1 Notwithstanding anything herein to the contrary, and subject to the cost requirements and City approval- requirements under the Term of the Lease, in the event that the Premises or the Building are partially or totally damaged or destroyed, from any cause whatsoever, except through fault of EC Services, whether or not such damage or destruction is covered by the insurance required under Section 6, then Club may, at Club's.sole option, either: 1) restore the Premises, Building, or: improvements to the condition existing iminediatelyprior -to such damage or destruction and this Sublease shall remain in full force and effect; or 2) terminate this Sublease immediately; provided, however, that if the cost of restoration of the damage or destruction is, Ten Thousand Dollars ($10,000.00) or less and insurance proceeds are availal,le for such restoration, kb shall repair the Premises or Building to their condition existing immediately prior toth damage or destruction. 7.1.2 Any damage caused through fault of the EC Services shall be repaired and restored to the condition existing immediately prior to such damage or destruction at the sole cost and expense of the EC Services; provided, however, in no event shall the obligation of EC Services withrespect to such cost and expense exceed $500,000.00. EC Services agrees that Sublease-BOYS'AND GIRLS' CLUBS AND EC SERVICES NATIONAL -CITY BRANCH 12 Attachment 3 preliminary steps toward performing repairs, restoration or replacement shall be commenced within thirty (30) days; and the required repairs, restoration, or replacement shall be completed within.a reasonable time thereafter in a manner acceptable to Club, in Club's sole discretion: 7.2 ,Abatement of Rent. If the Premises are, partially or totally damaged or destroyed, and if Club restores the Premises under the provisions of'Sectibn 7.1, monthly rent . shall be abated proportionately with the degree to which EC Services' use of the Premises is impaired commencing from the date of damage or destruction and continuing during the period of such restoration until the restoration is completed so that EC Services may use the Premises for EC Services' usual business. 7:3 Waiver, EC. Services waives the provisions of any statutes which relate to termination of leases when the thingleased is destro ed and y agrees that such event shall be governed by the terms of this Sublease. 7.4. Waiver of Subroeation. The parties agree to have their respective property damage insurance carriers waive any right,to subrogation that such companies may have against the Club or EC Services, as the case may be, so long a the insurance is not invalidated thereby. EC Services shall be responsible for and, shall pay any increase in the Club's insurance premiums resulting from any loss or damage caused by EC Services, its officers, directors, employees, agents, guests, participants, invitees and the like, resulting from this waiver. EC Services shall pay said increase on an annual basis for a period of ten (10) years after such increase premium, if any, ischarged to the Club. This obligation shall survive termination or expiration ofthis Sublease and any extension thereof. 8. Intentionally. Left Blank. 9. Licenses and Permits, It shall be the sole and full responsibility of EC Services, at its cost, to obtain all permits and licenses as are necessary to the ,use, operation, occupancy and/or maintenance of the Premises. The City has, informed the Club that no Conditional_ Use Permit ("CUP") is required to operate the subject Head Start Program. However, should any CUP be required in the future to operate the EC Services' Head Start Program the cost of said CUP shall be paid for by the Club. The Club makes no representation or guarantee that'a CUP can or willbe btained if required is the future. However, in no event shall the Club e responsible for y damages to EC Services in connection with the failure or inability to obt in the CUP in the event one is required. 10. j3ours of Operation. Subject to the written consent of the City, if required, EC Services shall conduct its operation of the Head Start Program on the Premises during the following hours: Monday through Friday, except' holidays, 7:00 a.m. to 6:00 p.m. during the Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 13 Attachment 3 Head Start school year applicable to the Head Start Program operated at the Premises ("Operating Hours') and occasional evening or weekend use for Parent and/or Staff Meetings. Subject to the Lease and to any requirement by the City and/or the Club, EC Servicesmay, in its. reasonable discretion change the Operating Hours from time to time upon (i) two (2) weeks) written notice to the Club if such change is temporary or infrequent (e.g. special events, parent meetings, and other events not occurring regularly each month, or (11) upon thirty (30) days written notice to Club if EC Services intends such change to be permanent or to last for more than one consecutive month. 11. Default. 11.1 EC Services's Default. The occurrence of any of the following shall constitute a default by EC Services: 11.1.1 Failure to pay rent or other sums when due. 11.1.2 Abandonment and vacation of the Premises (failure to occupy and operate the Premises for four (4) consecutive weeks, except, for scheduled holidays or breaks shall be deemed an abandonment and vacation). 11.1.3 Failure to perform any other provision of this Sublease (a non - monetary default) if the failure to perform is not cured within thirty (30) days after notice has been given to EC Services. If the default cannot reasonably be cured within thirty (30) days, EC Services shall not be in default of this Sublease if EC Services commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. Notices given under this. Section 11.1.3 shall specify the alleged default and the applicable Sublease provisions, and shall demand that EC Services perform the provisions, of this Sublease or pay the rent that is inarrears, as the case may be, within the applicable period of time, or quit the Premises. No such notice shall be deemed a forfeiture or a termination of this Sublease artless Club so elects in the notice. The purpose of the notice requirements set forth in this paragraph:is to extend the notice requirements of the unlawful detainer statutes of California ljto notices shall be required to be given under Section 11.1.1 or 11.1.2. 1 11.1.4 Violation by EC Services of any; provisions of covenants, conditions and restrictions ("CC&Rs") and/or any other recorded documents affecting the Premises. .Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES .' NATIONAL CITY BRANCH 14 Attachment 3 11.1.5 No interest of EC Services in this Sublease shall be assignable by operation of law. Each of the: following acts shall ,be -considered an involuntary assignment and a default hereunder. 11.1.5.1 1f EC Services is or becomes bankrupt or insolvent or is unable to pay EC Services's debts as they become due, makes an assignment for the benefit of creditors; or institutes a proceeding under the Bankruptcy Actin which EC Services is the bankrupt; or, if EC Services is a partnership or consists of more than one person or entity, if any partner of the partnership or other person or entity is or becomes bankrupt ori insolvent, or makes an assignment for the benefit of creditors; Sublease; 11.1.5.2 if it writ of attachment or execution is levied on this 11,1.5.3 If in any proceeding or action to which EC Services is a party, a receiver is appointed with authority to take possession of the Premise's. An involuntary assignment shall constitute a default by EC Services and Club shall have the right to elect to terminate;this Sublease, in which case this Sublease shall not be treated as an asset of EC Services. 12. Termination; This Sublease, may be terminated as follows: 12.1 In the event that during the term of this Sublease, governmental funding is either eliminated or reduced to a point so as to render continued operation of the Head Start Program impractical or impossible, EC Services may terminate this Sublease upon ninety (90), days' written notice to the Club. 12.2 By Club, for EC Services's breach of any term, covenant or condition contained in this Sublease which is not cured' within thirty (30) days immediately following written notice from the Club of such alleged breach. 12.3 By mutual agreement of the Parties hereto. 12.4 By Club in the event the Lease between the City and Cub is terminated for any reason. 12.5 By the Club in the event EC Services fails to pay any monetary obligation under this Sublease within 30 days of the date due. Sublease -BOYS' AND GIRLS' CLUBS AND. EC SERVICES NATIONAL CITY BRANCH 15 Attachment 3 12.6 By the Club in the event the Club Ends it is practicably unable to continue operation of the Club at this Property and/or Premises. 12.7 ,Exception. to Termination. Notwithstanding the above provisions regarding termination, this Sublease shall not be terminated by EC Services prior to June 30 in any year for which EC Services has received funding for its Head Start Program. 12.8 EC Services acknowledges and agrees that the Property is located on public parkland and therefore certaih uses are not permitted. EC Services further acknowledges and agrees that this it shall not obtain any long term property interest in the Property or the Premises. EC Services further agrees that in the event there is any successful challenge to the use by EC Services, nothwithstanding any other provision of this Sublease, the City may cause EC Services to vacate the Premises and this Sublease shall be terminated. 12.9 Surrender: Termination. Upon termination of this Sublease, EC Services shall surrender the Premises to Landlord in the same condition as received, ordinary wear and tear excepted, clean and free of debris: EC Services shall repair any damage to the Premises occasioned by the installation or removal of its trade fixtures, furnishings and equipment. Unless Landlord requests the removal all alterations, improvements and additions shall become the property of the Club and remain upon and be surrendered with the Premises at the expiration of the Term. Provided, however, EC Services shall have the right to remove any improvements, alterations or restorations purchased or constructed by EC Services using federal or other grant funding (collectively, "EC Services -Retained •Improvements"), unless Club elects no later than 10 days before the expiration of the Sublease teen, at Club's sole discretion, to purchase any such EC Services Retained Improvements from EC Services for a price that shall not be less than the depreciated book value of the EC"Services-Retained Improvements to beacquired by the Club. The sale of any EC Services -Retained Improvements to Club, and the price to.beipaid by Club, shall be subject to the approval, at the time of sale, of the federal agency or other grantor of the funds. In the absence of such an election by Club and approval by the grantor of the funds, EC Services shall be entitled to remove the EC Services -Retained Improvements at the expiration or earlier termination of the Sublease and shall be responsible for testorationof the Premises to a condition, less reasonable wear and tear, prior to the occupation by EC Services. 12.10 In the event the Head Start Program is terminated hereunder, EC Services shall, subject to and upon the wriren consent of the parents or guardians of the children then enrolled in the program, provide to the Club a record of all students then participating in the program, which record shall include eachstudent's name, the name of the student's parent(s) or guardian(s), address and telephone' number. The purpose for providing said records shall be to allow the Club, in its sole discretion, to continue providing service similar in nature to the Head • Sublease -BOYS' AND GIRLS'CLI1BS AND 0C SERVICES NATIONAL CITY BRANCH 16 Attachment 3 Start Program to said students. 12.11 ;folding Over. Any holding over, by EC Services after the expiration of the Term of this Sublease`ot: any extension thereof shall create a month=to-month tenancy, upon the same: terms.and,conditions herein contained; provided, however, that so long as EC Services continues to pay all. rent due under this Sublease. and complywith all other covenants, terms and conditions, Club shall not terminate such tenancy during the period from September. I through June 30, except for such other termination rights expressly provided In this Sublease:. 13. • Late Charges. EC Services hereby acknowledges that late payment by EC Services to the Club of rent and other sums due under this Sublease will cause the Club to incur costs not contemplated by this Sublease, the exact amount of which will be extremely, difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may beimposed on the Club by the terms of any mortgage or trust deed covering the Premises or, charge by the City. Accordingly, if any installment of rent or any other sum due from EC Services is not received by the Club within ten (10) days after such amount is due then EC Services shall immediately' pay to Club a late charge equal to six percent (6%) of the overdue amount, The parties,agree that such late charge represents a fair and reasonable estimate of the costs the, Club will incur by reason of late payment by EC Services. Acceptanceof the late charge by the Club shall in no event constitute a waiver of EC Services's default with respect to such overdue amount, nor prevent the Club from exercising any of the other rights and remedies granted under this Sublease. If a late charge is payable hereunder, whether or not collected, for three (3) installments of rent, then rent shall automatically become due and payable quarterly in advance, rather than monthly, not withstanding any other provision of. this Sublease to the contrary. 14. Condemnation. 14.1 Definitions. "Condemnation" means: (a), the exercise of any governmental power, whether by legal proceedings or otherwise, by a condemnor;; or (b) .a voluntary sale or transfer by Club to any condemnor, either. under threat of condemnation or while legal proceedings for condemnation are pending, 'Date of Tailing" means thedate the condemnor has the right to pospession of the property being. condemned. "Award" means all compensation, sums, or anything of value awarded, paid or received.on a total or partial condemnation: "Condemnor" means any public or quasi -public authority, or private corporation Sublease -BOYS' AND GIRLS' CLUBS ANDEC SERVICES NATIONAL, CITY BRANCH 17 Attachment 3 or individual, having the power of condemnation. It, during the Term or during the period of time between the execution of this Sublease and the date the Term commences, there is a taking of all or any part of the Premises, Building, other improvements or real property of which the Premises are a part or of any interest in this Sublease by condemnation, the rights and obligations of the parties shall be determined pursuant 'tothis Section. 14.2 Total Taking. If all of the square footage in the Premises is taken by ' CondemnatIon, this Sublease shall terminate on the Date of Taking., 14.3 Partial Taking. If a portion of the square footage but less than all of the square footage of the Premises orof the Building or the real property of which the Premises are a part, is taken by condemnation, Landlord, within sixty (60) days after the Date of Taking, may tenninate this Sublease as' of a date specified in a written notice given to EC Services by Landlord within that sixty (60) day period. If Landlord does not give notice of termination to EC Services within that sixty (60) day period, then this Sublease shall continue in full force and effect; provided, however, that if a portion of the square footage but less than all of the square footage in the Premises is taken, monthly rent shall be reduced by an amount that is in the same ratio to monthly rent as the total square footage in the Premises taken bears to the total square footage in the Premises immediately before that Date of Taking. • 14.4 Waiver of California Code of Civil Procedure Section 1265.130. EC Services waives the provisions of Code of Civil Procedure Section 1265.130 allowing a party to petition the superior court to terminate this Sublease in the event of a partial taking of the Premises. 14.5 Restoration of Premises. If there is a partial taking of the Premises and this Sublease remains in full force and effect EC Services at its cost shall acoomplish all necessary restoration with no abatement of rent. 14.6 Award. The entire award shall belong to and be paid to Landioid except that EC Services shall receive from the award a sum attributable to EC'Services's improvements or alterations made to the Premises by EC Services in accordance with this Sublease which EC S ices has the right to remove from the Premises pursuant to the provisions of this Sublease bi ttvelects not to remove. 15. No Broker. EC Services represents that neither the Premises, nor any portion of the Building, was presented to it or to any person representing it by any broker or finder and that no broker or finder was involved in the leasing of the Premises, EC Services warrants that no claim 'for commission for the leasing shall be presented to Landlord. Further, EC Services agrees to Sublease -BOYS' AIW GIRLS' CLUBS AND EC SERVICES, NATIONAL CITY BRANCH 18 Attachment 3 indemnify and defend Landlord in the event of any such claims. 16. Assignment. 16.1 No Assignment EC Services shall not voluntarily assign or encumber its interest in this Sublease or in the Premises, or sublease all or any part of the Premises, or allow any other person or entity to occupy or use all or any part of the Premises, without first obtaining, Landlord's and the City's prior written consent which consent shallnot be unreasonably withheld. Any assignment, encumbrance, or -sublease without Landlord's prior written consent shall be voidable and, at Landlord's election,shall constitute a material default of this Sublease. No consent to any assignment, encumbrance, or sublease shall constitute a'further waiver of the provisions of this Section. 16.2 Xf Consent is Given. If Landlord consents to a sublease or assignment of this Sublease, EC Services immediately and irrevocably assigns to Landlord, as security for EC Services's obligations under this Sublease, all rent from any subletting of all or any part of the Premises as permitted by this Sublease, and Landlord, as assignee and as attorney -in -fact for EC Services, may collect such rent and apply it towards EC Services's obligations, under this Sublease; exceptthat, until the occurrence of an act of default by EC Services, EC Services shall have the right to collect such rent, All rent received by EC Services from its sublease in excess of the rent payable by EC Services to Landlordunder this Sublease shall be paid to Landlord, or any sums to be paid by an assignee to EC Services in consideration of the assignment of this Sublease shall, be paid to Landlord if Landlord consents to a sublease or assignment. If EC Services requests Landlord to consent to a proposed assignment or subletting, EC Services shall pay to Landlord, whether or not consent is ultimately given, Landlord's reasonable attorneys fees incurred in Connection with each such request. 16.3 Assignment, by Operation of Law: No interest of EC Services in this Sublease shall be assignable by operation of law. Each of the following acts shall be considered an involuntary assignment: • 16.3.1 If Subtenant is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors or • stitutes a proceeding under the Bankruptcy Act in which Subtenant is the bankrupt; or, if Sub nan is a partnership or consists of more than.one person or entity, if any partner of the p ers sip or other person or entity is or becomes bankrupt or insolvent,' or makes an assignment for the benefit of creditors; 16.3.2 If a writ of attachment or execution is levied on this Sublease; 16.3.3 If, in any proceeding or action to which Subtenant is a party, a Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL: CITY BRANCH 19 Attachmeiit3 receiver is appointed with authority to take possession of the Premises. An involuntary assignment shall constitute a default by'Subtenant and Landlord shall, have the right to elect to terminate this Sublease, in which case this Sublease shall not be treated as an asset of EC Services. 17. )Estoppel Certificate; Subtenant shall at any time and from time to time, upon not less: than ten (10) days prior written notice from Landlord, execute, acknowledge, and deliver to; Landlord a statement in writing certifying certain facts including, without limitation; that this Sublease is unmodified and in full force and effect (or if modified stating the nature of such? modification and certifying that this Sublease, as so modified is in full force and effect) and the dates to which the rental, the security deposit, and other charges, if any, are paid in advance, and acknowledging that there are not, to Subtenant's knowledge, any uncured defaults on the part of Landlord hereunder, and no events or conditions then in existence which, with the passage of time or notice or both, would constitute a default on the part of Landlord hereunder, or specifying such defaults, events, or conditions, if any are claimed. It is expressly understood and agreed that any prospective purchaser or encumbrancer of all or any portion of the Premises or the Building or of the real property of which they are a part shall be entitled to rely upon any such statement. Subtenant's failure to deliver such statement within such time shall, at the option of Landlord, constitute a breach or default under this Sublease. If such option is notso exercised by Landlord;, Subtenants failure shall be conclusive upon Subtenant -that (I) this Sublease is in full force and effect without modification except as may be represented by Landlord; (ii) that there are no uncured defaults in Landlord's performance; and (iii) that not more than one (1) months' rental has been paid in advance:, If Subtenant fails to deliver the certificate within ten (10) days of delivery of notice, Subtenant irrevocably constitutes and appoints Landlord as its special attorney -in -fact to execute and deliver the certificate to a third party. 18. ,Subordination.. Subtenant agrees upon request of Landlord to subordinate this Sublease and its rights hereunder to the lien of any mortgage, deed of trust or other encumbrance, together with any conditions, renewals„ extensions, or replacements: thereof, now or hereafter placed, charged or enforced against the Landlord's interest in this Sublease and the leasehold estate. thereby created, the Premises, the Building or improvements included therein or theme' property of which the Premises are a part, and deliver at any timeand from time to time demand by Landlord any documents required to effectuate such subordination. In the event that Subtenant fails, neglects or refuses to execute and deliver any such document within ten (10) days after receipt of written notice to do so and the receipt by Subtenant of the document to be executed by. it, Subtenant hereby appoints Landlord, its successors and assigns, the special attorney -in -fact of Subtenant irrevocably to execute and deliver any and all such documents for and on behalf of Subtenant provided, however, that Subtenant shall not 'be required to effectuate such, subordination,, nor shall Landlord be authorizedto effect such; subordination on behalf of Sublime -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 20 Attachment 3 Subtenant, unless the mortgagee or beneficiary named in such mortgage, deed of trust or other encumbrance shall first agree in writing, for thebenefit of Subtenant, that so long as Subtenant is not in default under any of the provisions, covenants or conditions of this Sublease on the part of Subtenant to be kept and performed, that Subtenant's quiet enjoyment of the Premises will not be disturbed, or interfered with by any trustee's sale or by any actionor proceeding to foreclose said mortgage, deed of trust or other encumbrance. In the event that the mortgagee or beneficiary of any such mortgage or deed of trust elects to have this Sublease a prior lien to its mortgage or deed of trust, then and in such event upon such mortgagee or beneficiary giving written notice to Subtenant to that effect, this Sublease shall be deemed a prior lien to such mortgage or deed ofMast whether this Sublease is dated or recorded prior to or subsequent to the date of recordation of such mortgage or deed of trust. 19. Citv's Liability. The City shall mean only the owner or owners, at the time in question, of the fee interest in the Premises. In the event of any transfer of such fee. imerest, City shall be relieved from and after the date of such transfer of all liability under this Sublease provided that any funds in the hands of City at the time of such transfer, in which Subtenant has an interest, shall be delivered to the grantee. The obligations in this Sublease to be performed by City, if any shall be binding, on City's successors and assigns only during their respective periods of ownership. 20. Interest on Past Due Obligations. Except as expressly herein provided, any amount due to a party and not paid when due shall bear interest at 10%from the date due until paid. 21. Notices: Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other of any other person shall be in writing and either served personally or sent by prepaid certified mail, first class, and shall be addressed to the other party at, the address set forth, under its name on the signature page of this Sublease. Either party may change its address by notifying the other party of the change of address in accordance with this Section. Notice shall be deemed effective upon receipt if personally delivered or seventy- two (72) hours from the date of mailing if mailed as provided in this Section. 22. S btenant shall not place any sign upon the Premises, the Building or any improvemen s o the real property of which the Premises area part .without the Club's and the City's prior written consent. 23. $eeording/Onitclaim Deed. This Sublease shall not be recorded without City's and Landlord's prior written consent. Subtenant shall execute and deliver to Landlord on the expiration or termination of this Sublease, immediately on Landlord's request, a quitclaim deed Sublease•BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH. 21 Attachment 3 to the, Premises, in recordable form, designating Landlord as transferee. 24. Intentionally left blank. 25. Landlord's Right of Entry. Landlord, Landlords agents and City shall have the right to enter the Premises at reasonable times for the purpose of inspecting the same, showing the . Premises to prospective purchasers, lenders or Subtenants and making such alterations, repairs, improvements, or additions to the Premises or the Building es Landlord may deem necessary or desirable. City may at any time place on or about the Premises any ordinary "for sale" signs and Landlord may afany time during the last one hundred and eighty(180) days, of the Term of the Sublease place on or about the Premises "For Lease" signs. 26. Attorney's Fees. If either party brings an action to enforce the terms of this Sublease or declare rights hereunder, the prevailing party in such action, arbitration or trial or appeal, shall be entitled to its reasonable attorney's fees and costs to be paid by the losing party as fixed by the court. 27. Security Measures. Subtenant hereby acknowledges that.the rent payable to Landlord hereunder' does not include the cost of guard service or other security treasures and that Landlord shall have no obligation whatsoever to provide the same. •Subtenant assumes all responsibility for the protection of Subtenant, its agents and invitees from acts of third parties. 28. Landlord's Right to Effect Performance. If Subtenant at any time fails to perform any covenant, term or condition of this Sublease, Landlord may after providing EC Services the notice and period for cure specified in Section 11.1.3, perform the same for the account of Subtenant, and any monies paid by Landlord on account thereof shall be deemed to be additional rent due under this Sublease, shall be immediately due and payable to Landlord .and shall bear interest at the maximum rate allowable by law until paid by Subtenant to Landlord. 29. Intentionally left blank. 30. )17iscellaneous, 30.1 Time of Essence. Time is of the essence tolthis Sublease. . 30.2 Amendments. This Sublease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Sublease may be modified only in a writing signed by all parties hereto. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 22 Attachment 3 30.3 Sevcrability. The invalidity of any provision of this Sublease as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof and it shall remain in full force and effect. 30.4 Waiver. No delay or omission in the exercise of any right or remedy of Landlord on any default by Subtenant shall impair such right or remedy or be construed as a waiver. No act or conduct of Landlord, including, without limitation, the acceptance of the keys to the Premises, shall constitute an acceptance of the surrender of the Premises by Subtenant before the expiration of the Term. Only a written notice from Landlord to Subtenant shall constitute an acceptance of the surrender of the Premises and accomplish a termination of the Sublease. Landlord's consent to or approval of any act by Subtenant "requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent act by Subtenant. Any waiver by Landlord of any default: must be in writing and shall not be,a waiver of any other default concerning the same or any other provision of this Sublease. 30.5 Cumulative Remedies.. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 30.6 Covenants and Conditions, Each provision of this Sublease to be performed by Subtenant shall be deemed both a covenant and a condition. 30.7 Governing Law. This Sublease shall be governed by the laws of the State of California. 30.8 )(ieirs. Successors and Assigns. Subject to the provisions restricting assignment or subletting by EC Services, or other provisions of this Sublease, this Sublease shall be binding on the parties, their respective heirs, personal representatives, successors and assigns. 30.9 Authority. Each individual executing this Sublease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Sublease on behalf of that entity. Each party shall, provide the other party with evidence of such authority satisfactory to Landlord. 30.10 Written Notice or Consent of Parties. Whenever a notice, consent or approval of either party isrequired, the notice, consent or approval shall be in writing. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 23 Attachment 3 30.11 Captions, The captions of this Sublease shall have no effect on its interpretation. 30.12 Construction. As used in this Sublease, the masculine, feminine or neuter gender and the singular or plural numbers shall each be deemed to include the other whenever the context so indicates. This Sublease shall be construed in accordance with its fair meaning, the captions being for the convenience of theparties only and not intended to describeor define the provisions in the portions of the Sublease to whichthey pertain. The terms of this Sublease have been freely negotiated by the parties and this Sublease shall not be construed against the drafter. 30.13 Mediation. Arbitration and Attorney's Fees. 30.13.1 MlMediation of Disputes, Except as otherwise provided herein, the parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration. Mediation fees, if any, shall be ,divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences arbitration without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover.attorney's fees, even if they would otherwise be available to that party in any such arbitration. 30.13.2 Arbitration of Disputes, Except as otherwise provided herein, any action to enforce or interpret this instrument or to resolve disputes between the parties regarding this instrument, shall be settled by binding' arbitration in accordance with California law. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. Arbitration shall be conducted at San Diego, California. The substantive law of the State of California shall be applied by thearbitrator to theresolution of the dispute. The parties shall share equally all initial costs of arbitration, The prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be, entered upon any such decision in accordance with applicable law in any -court havingjurisdiction thereof. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVJCES NATIONAL CITY BRANCH 24 Attachment 30.13.3 Exclusions from Mediation and Arbitration. The following matters are excluded from mediation and arbitrationf(1) a judicial or non judicial foreclosure or other action or proceeding to enforce a deed of trust mortgage or installment land sale contract as defined in Califomia Civil Code §2985; (2) an unlawful detainer action; • (3) the filing or enforcement of:a mechanic's lien; and (4) any matter that is within the jurisdiction of a probate, small claims or bankruptcy court. The filing of a court action to enable therecording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies; shall not constitute a waiver of the mediation and arbitration provisions. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. Arbitration shall be conducted at San Diego; California. The parties shall share equally all initial costs of arbitration. The prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. "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 THE '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 NE ITRATION. INITIALS: 'C/JXIrtt 30.14 Incorporation of Recitals. Recital provisions set firth above are an integral part of this Agreement and are by this reference incorporated herein as though set forth in full. Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL ;CITY BRANCH 25 Attachment 3 30.15 Counterparts. This Sublease maybe executed in one or more counterparts, each of which shall be considered an original of this Agreement, LANDL0RD:S CLUB OF GREATER SAN DIEGO By:, Danny,6(tloclt, CEO Addr s: P.O. Box 178569 San Diego, CA 92177 Tel. #: 858-866-0591 Facsimile: 858-866-0595 E-mail: dsherlock@sdyouth.org Subtenant: EC Services B:( Y y� Christop er J. Manes, ChiefAturinistrative Officer Address: 40 Mile of Cars Way, Suite 350 National City, CA 91950 Tel. #: 619-228-2800 Facsimile:. 619-228-2801 E-mail: cmarics©ecscalifornia.org APPROVED AS TO FORM AND CONTENT CITY OF NATIONAL CITY By: (print name and title) 1 \\w6tbhlivntlaVA94oel pdal8gs'sad Girls' Club \EpLwpa7 Community Scnices1.4ubless.,ised 7.14.14.wpd Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 26 Sublease -BOYS' AND: GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH EXHIBIT "A" Legal'Description Of the Property 27 Attachment 3 Attachment EXHIBIT "A° That portion of Blocks 3 and 4 per Map No. 552, Records of San Diego County, California, November 4,1914, together with closed and vacated to public use portions of 14th Street, 15'h Street end C Avenue, described as follows: COMMENCING at the-Souttieastcorner of said Block 4; Thence along the Southerly prolongation of the Easterly line of said Block 4. South 17°47'04° East, 4.24 feet to the POINT OF BEGINNING; • 1. Thence leaving said line, South 71° 58' 15" West, 249.51 feet; 2. Thence South 28° 4T 5r West,18.17feet; 3. Thence North 79° 32' 30" West, 9.76 feet; 4. Thence North 88° 10' 29"West; 10.10•feet; 6; Thence South 81° 39' 65" West, 10.18 feet; 6. Thence South 68° 32' 00° West, 48.87 feet; 7. Thence North 71° 20' 62" West; 29.69 feet 8, Thence North 67° 43' 17" West, 19.80;feet; 9. Thence North 61° 15' 54"Westt, 39.52 feet: 10. 'Thence North 30° 13' 18" West, 15.13 feet; 11. Thence North 23° 22' 20" East, 37.88 feet; 12. Thence North 37° 26' 19" East, 69.13 feet; 13. Thence North 43° 43' 42"East; 79.18 feet? 14. Thence North 51 ° 18' 19" East, 19.29 feet; 15. Thence North 60° 34' 10" East, 128.19 feet; 16. Thence North 16,° 40' 03" West, 41.66 feet; 17. Thence, North 34° 52' 24" East, 27.92 feet 18. Thence North 71 ° 34' 28° East, 89.80 feet to the Northerly prolongation of Easterly line of said Block 4; 19. Thence along held line, South 17° 47' 04° East, 288.11 feet to the POINT OF BEGINNING. Said • land contains 75, 760 S.F., more or less. This legaldescription has been prepared by me, or under my direction, in. nfonnance with the Professional ndSurveyors Act. Signature: Jo n R. Berggren, L.S. 6000 Li nse Expires 12131/2010 Date: January 4, 2009 UNE TABLE UNE .BEARING DISTANCE LINE BEARING DISTANCE 1.1 S71'56'1514 249.51' L11 S23'22'20"W 37.88' 12 528'47'57'W . 16.17''' 1.12 N37'26'19'E 69.13' 1.3 S79'32'30"E 9.76' 113 N43'43'42"E 79.18' 1.4 .S8B10'29"E 10.10' 1.14 N5118'19'E 19,28' L5 4481'39'55"E, ' 10.18' 115 S60'34'10"W 128.19' L6 N68'32'00'E `;48.87' .L16 S16'46'03"E 41.65' 17 S7.1'20'52'E 29.69' 1.17 S34'52'24"W 27.92'' L8, . N67'43'17"W 19,80' 118 S71'34'26'W 89.80', 19 ; N61'15.'54'W 39.52' `L19 617'47'04"E 266.11' 110 63013'16`E 15.13' k59 a-' BLOCK 4 POINT OF Attachment 3 SCAEE 1'= 160' C0 d�+ENCE'ENT 2� SOUTHEAST O CURRENT' OORNER OE LEASE (, Y , AREA BLOCK $ 4.24' \\, POINT OF i �\ BEGINNING L8 �C7 '6 rL2 15 13 r r MAP 55 19�TN� r NEW LEASE AREA 75,670 SF BERGGREN &: ASSOCIATES LAND SURVEYING AND RIGNTOS WAY. MAPPING 6046 CORNERSTONE COURT WEST R116 SAN DIEGO, CALIFORNIA 92121' (858) 824-0034./ (858) 824-0036 EXHIBIT•B" (Copy of the Club's Lease with the City of National City) Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES NATIONAL CITY BRANCH 28 • Attachment 3 PLEASE ADMPLRE THIS INFORMATION RECORDING REQUESTED OY: CITY CLERK OF NATIONAL CITY 1243National City Blvd National City,'CA 91950 e°� AND WHEN RECORDED MAIL TO:, ' CITY CLERK OF NATIONAL CITY 1243. National EIty, Blvd National City, CA 91950 II6@ Mr.r.hrnant 111111II�I8111II8111011101611��IIB�IIB IIBNI91�I8➢1 SEP12, 2011 1:83 PM OFFICIAL RECORDS SAN DIEGO COUNTY HECOpDERB OFFICE Enson J. Dronanbury.Jh., COUNTY RECORDER FEES: O:OD PAGES: NM 111111111111111111101101111111111111111 IIi��YN� M TNISSPAGTPDR RECORDERS USE ONLY 20-YEAR LEASE AGREEMENT WITH THE BOYS'AND GIRLS' CLUB OF GREATER SAN DIEGO, INC„ FOR THE CITY -OWNED LAND AND BUILDING LOCATED AT 1430 D AVENUE (Please fill In document tate(s) on this line) *GRADE ADDED TO PROVIOEADEQUATE SPACE. FOR. RECORDING INFORMATION Altaehmest 3 LEASE BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, INC. This Lease is made and entered into this 1601 day of August, 2011, (the "Commencement Date'), by and between the City of National City, a municipal corporation, hereinafter designated as "Lessor", and the Boys & Girls Clubs of Greater San Diego, Inc., hereinafter designated as "Lessee" RECITALS A. Lessee is desirous of leasing from Lessor certain real property, including a building and. other improvements, for the purpose of maintaining a clubhouse thereon, and •for promoting the physical, mental; and moral well-being of the boys and girls of the City of National City, and for boys and girls in the immediate vicinity thereof. B. Lessee has constructed arid maintained the building and improvements on the Premises for many years with private funds raised from the coramunily bythe Boys' and Girls' Clubs. Said building and improvements, together with all appliances; fixtures, equipment end furniture (excluding the tables and chairs kept inside the building) were conveyed and transferred to Lessor on or about December 17, 2008. C. The use of said property for the purpose aforementioned will promote the general welfare of all the inhabitants of the City of National City. NOW, THEREFORE, the parties hereto agree as follows: I . Leased Premises. Lessor does hereby lease, demise and let to Lessee the real property, building,..and other improvements situated in the City of National City,. County of San Diego, State of California, commonly known as 1430'"D" Avenue, as more specifically described in the attached Exhibit "A", and shown on the attached Exhibit "B", which are incorporated herein byreft, euce (the "Leased Premises"). Lessee has constructed and maintained the building and improvements on the Premises for many years with private funds raised from the eommunit» by the Boys' and Girls' Clubs'. Said building and improvements, together w th all appliances, fixtures, equipment and furniture (excluding the tables and chairs kept December 17, 2008.inside the building) were conveyed and transferred to Lessor on or about 2. Term, The Tenn of the Lease shall be fora period of twenty (20) years from the date first written above. 3. Uwe. The aboVedescribed premisesare, leased to Lessee by Lessor for the purpose of maintaining a Boys and Girls Club, and to be used exclusively and for no other purpose than to maintain said Boys & Girls Club, and to promote the physical, mental; and moral well-being of the boys and girls of the City of National City and territory adjacent thereto; and to provide such means of 2011'Lease. Betwcrn CityorNatioml City lad Boys sad OM Clubs of Craw San Diego TaacI moat 3 education, wholesome recreation, andproper guidancoas may seem most likely and desirable for the accoinplisliment of the purposes herein set forth. 4. Legal Status of Lease. Lessee warnmts that itis a California nonprofit corporation 5 Rent. Lessor and Lessee acknowledge that the consideration for this Lease and any Option period shall bo the annual, sum of One Dollar ($1.00) and the mutual benefit to be derived from Lessee's uses of the Leased Premises; as specified herein. 6. Assignment and Subletting; This Lease shall not assigned, sublet, . • hypothecated, leveraged, or transferred without the prior written consent of Lessor. 7. Repairs bv Lessor. Lessor shall be required to make such repairs or replacements to the Leased Premises as may be required for normal maintenance and operation, which shall include the repairs and/or replacements to all structural portions of the building located on the Leased Premises, and all walls, floors, corridors; windows, HVAC, mechanical electrical, plumbing, paving and parking, extcrior windows and other strictures and equipment within and serving the, Leased Premises, and such additional maintenance as may necessary because of damages bypersons other than Lessee, its agents, employees, invitees, or visitors, all in accordance with standard practices for similar, commercial buildings in the San Diego;; California area. Lessor shall be responsible for eritermination/pestcontrol for the Leased Premises. Without limiting the foregoing, notwithstanding anything to the contrary set forth herein, if Lessor is required to make repairs to take other corrective action in the Leased Premises by reason of Lessee's negligent acts or negligent failure to act reasonably, Lessor shall have, the right to recover from Lessee the reasonable cost of the repairs or other .work. 8. Remiss bv Lessee. Lessee agrees to repair or replace any damage or injury done to the Leased Premises, or any part thereof, caused by Lessee or Lessee's agent&. employees invitees or visitors, at Lessee's own cost and expense within a reeasonable time after wri notice from Lessor. If Lessee fails to make such repairs or replacements witd 'n a reasonable time after wrivten notice, Lessor may; at its option, makesuch repairs or, replacements, and lessee shall repay the cost thereof to the Lessor as additional rent within ten (10) days of written demand. However, for any repair work, other than repair work in emergency situations, costing over Five Thousand and no/100 Dollars ($5,000.0'0) to be performed by Lessee or Lessee's agents, Lessee shall not perform such repair work without the prior written consent of Lessor's City Manager or designee. Any repairs or replacements in or to the Leased Premises, other than repair work in emergency situations, which would require an expenditure exceeding Five Thousand and no/l00 Dollars ($5,000.00) and which constitute a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by Lessor and let to the lowest responsible.bidder atter notice. f L tart Lent 104.01City °Malone' City and Boys end girls pubs of Ctmter San Dkgo Aa0 hmont 9. Routine Maintenance by Lessee. From and after the Commencement Date and during the Tenn, Lessee;sball, at its own cost and expense, make all repairs and replacements, required by titre Lease, reasonable wear end use excepted, and excepting those repairs to be made by Lessor as set forth in Section'2 above. 10. Waste. Lessee shall not commit waste (property abuse, destruction, or damage) beyond normal wear and tear of the Leased Premises. 11. • jmprovements, Alterations. -and Additions. Lessee shall not make or, allow to be made any major alterations or physical additions in or to the Leased Premises which afectthe steatite or any otherr improvements and costing more than'Pive Thousand and no/100 Dollars ($5,000.00) without first obtaining the prior written consent of Lessor's City Manager ordesignee; which consent shall not be unreasonably withheld. All work shall be done by contractors approved by Lessor. Any alterations or physical additions, in or to the Leased premise that would require an expenditure exceeding'Five Thousand andnoll00 Dollars ($5,000.00), and which constitute a "public project" under Sebtion20161 of the California Public Contract Code, shrill be contracted for/by Lessor and let to the lowest responsible bidder after notice. Any and all such alterations, physical' additions, or improvements, when made to the Leased Premises by Lessee, shall at once become the property of Lessor and shall be surrendered to Lessor upon the termination of this Lease bylapse of titre or otherwise; provided, however, this clause shall not apply trade thrones, equipment, or furniture owned by Lessee. Any Lessee improvements, alterations or additions shall comply withall government; local building code, permitting, and competitive bidding. requirements. Lessee shall give Lessor written notice five'(5) days prior to employing any laborer or,00ntractor to perform major work on the Leased Premises so- that Lessor may post a notice of non -responsibility, if allowed by law. Lessee shall not be required to remove alterations, physical additions, or improvements upon tenninstion,of this.Lease 12. Utilities Lessee will beresponsible for payment 'of utilities, including but not limited to electric, gas, telephone, security, fire alarm, sewer, trash, and water. Lessee understands that it is responsible for the proper disposal of debris in the designated trash receptacles provided by the Lessor. No trash is to be placed in front of or on the sidesof the container nor should•any trash be placed o top of the lids. Lessee further understands that it will be billed accordingly for not disposing oftrash in the proper manner, which includes breaking down all boxes and containers prior to being placed inure trash bins. 13. Indemnity and Insurance. a. Dfscfaimes"• of Liability. Lessor shall' not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Lessee's constnsction,.maintenance, repair, use, operation, or dismantling of the Leased Promises except to the extent caused by Lessor's negligence or willful misconduct. 2011 Ixe 0 Behr= City afNatiyval City end Boys codSaids Clubs ofGlreterSan Diego Ntaep,..ont 3 Indemn cation. Lessee shall, at its sole cost and expense, defend,. indemnify, and hold harmless Lessor and its officials, boards, commissions,, employees, agents, attorneys, and contractors (hereinafter referred to as 'ndenuutees"),'from and against: i, Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses, including without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants,; which may arise out of or be in any way connected with Lessees constntction, maintenance,, repair, use, operation, or dismantling of the Leased Premises or Lessee's failure to comply with any federal, state, or local statute, ordinance or regulation. ii. Lessee's obligations to indemnify indernoitees under this, Lease shall not extend to claims, losses, and other matters covered hereunder to the extent such claims arise out of the negligence or willful misconduct of one or more indemnitees. c. Assumption: of Risk. Lessor warrants that it does not have knowledge that a dangerous condition exists at the Premises except as may be specifically set forth in this Lease. Lessee undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors, and employees (collectively for the purpose of this section), all risks of unknown dangerous conditions, if any, on or about the Leased Premises, and Lessee hereby agrees to indemnify and hold Harmless Lessor against and fmm any claim asserted or liability' imposed upon the:Indenmitiees for personal injury or property damage to any person (other than from Indemnitee's negligence or willful misconduct) arising out of Lessee's oonstructibn, maintenance, repair, use; operation or dismantling of the Leased Premises or Lessee's failure to comply with any federal, state, or local statute, ordinance or regulation. d. Defense_ofLessor. In the event any action, or proceeding shall be: brought against Lessor by reason of any matter for which Lessor is indemnified hereunder,; Lessee shall, upon notice from Lessor at Lessee's sole cost and expense, resist and 'defend the same with legal counsel mutually selected by'Lessor and Lessee, provided however, that Lessee shall not admit liability in any such matter on behalf of Lessor without prior written consent of Lessor's City Manager or.designee, which consent shall not be unreasonably withheld, and provided further that Lessee shall not admit liability for, nor enter into any compromise or settlement ofi any claim for which it is indemnified, hereunder, without the prior writtenconsent of Lessor, which consent shall not be unreasonably withheld., e. Notice; Cooperation and Expenses. Lessee shall give Lessorprompt notice of the making of any claim or the commencement of any action, suit, or other proceeding covered by the provisions of this paragraph. Nothing herein shall be deemed to prevent Lessor from cooperating with 4 '2e11 LcasiBoneen airy of National City and Boys and Girls Clubs'ofGrat raw Diego AtLehiCe..l 3 Lessee and participating in the defense of any litigation by Lessor's own counsel. f. Insurance. During the term of the Lease, Lessee shall maintain, or cause to be maintained,in full force and effect and at its sole cost and expense; the following types and limits of insurance: Worker's compensation insurance meeting applicable statutory requirements., i . Commercial general liability insurance with minimum limits of Two Million and no/100 Doilers($2,000,000.00) as the combined single limit for each occurrence of bodily injury, personal injury, and property damage. ii At the start of and during the period of any construction by Lessee, builders all-risk insurance, together with an installation floater or equivalent property coverage covering cables, materials, machinery; and supplies of any nature whatsoever which are to be used in or incidental to the installation of improvements. iv All policies other than for Worker's Compensation shall be written on an occurrence and not on claims made basis. g• v. The coverage amounts 'set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. vi. Lessee shall furnish certificates of insurance to Lessor before commencement of the Lease term. Named Insureds. All policies, except for worker's compensation policies, shall name Lessor and its officials,, boards, commissions,employees, agents, and contractors, as their respective interests may appear, as additional insureds (herein referred to as. the "Additional Insureds"), and a separate additional insured endorsement shall be provided. h. Evidence of Insurance. Certificates of Insurance of each insurasce policy requiredto be obtained by Lessee in compliance with this paragraph, along with written evidence of payment of required premiums shall be filled and maintained with, Lessor annually during the teen of the Lease. Lessee shall immediately advise; Lessor of any claim or litigation, that may result in liability to Lessor; i. Cancellation ofPolkies ofInsurance. .All insurance policies maintained pursuant tothis Lease shall contain the following endorsement: 5 2011 Lem between City of National Cityrnd Boys nod Gala Clubs of Greeter San Diego At least thirty (301 days' prior written notice shall be given to Lessor by the insurer of any intention not to, renew such policy or to cancel, replace, or materially alter same. Insurance Companies. All insurance shall be affected under valid and enforceable policies, insured by insurers licensed to do business by the State of California or surplus carriers on the State of California Insurance Commissioner's approval list of companies qualified to do business in the State of California All insurance carriers and surplus line carriers shall be rated A+ or better by A.M.,Best Company, or as otherwise approved by Lessor's Risk Manager. k. Deductibles. All insurance • policies may be written with deductibles not to exceed $50,000 unless approved in advance by Lessor's Risk Manager. Lessee agrees to indemnify and save harmless Lessor, the indemnitees, and Additional Insureds from and against the payment deductible and from tbepayment of any premium on any insurance policy required to be furnished by the,Lease. L Contractors. Lessee shall require that each and every one of its contractors and their subcontractors who perform work on the. Leased Premises on behalf of Lessee to carry in full force and effect, workers' compensation, comprehensive commercial general- liability, and automobile liability insurance coverages of the type which Lessee is required to obtain under the terms of this paragraph with appropriate limits ofinsurance. m. Responsibility after Termination. Upon termination of the Lease, each party shall remain responsible to the other for any and all liabilities, obligations, damages. penalties, claims, lien, costs, charges, losses, and expenses arising under. the Lease which arose out of the Lease and occurred prior to such date of termination. n. Review ofLimits. Once during each calendar year during the term of the Lease, Lessor may review the insurance coverages to be carried by Lessee. If Lessor determines that higher limits of coverage are necessary to protect the interests of Lessor or the Additional Insureds, Lessee shall be so notified, and shall obtain the additional limits of insurance, at its sole cost and expense. 14. Inspection. Lessor, by and through its proper officers, reserves and shall always have the right, upon reasonable notice and at reasonable time, to enter the Leased Premises for the purpose of viewing and ascertaining the conditions of the same and the operation and maintenance thereof. • 2011 liasenetatin City or Notional eiry end Boys end Girls Clubs ofG,iesr Son Diego ntteeh..te..t 3 13. Removal. of Personal Property, At the termination or expiration of this Lease or any renewal thereof, Lessee shall, within ninety (90) days of written request by Lessor, remove any and all personal property not owned by Lessor, placed or erected on the premises during the term thereof, or any renewal thereof, and that all expense connected with such removal shall be borne by Lessee. Lessor shall have the right to sell, destroy, remove, or otherwise dispose of' any such personal propeftyleft on the premises longer than ninety (90) days after termination of this Agreement. The premises shall be left by Lessee in clean, neat, and safe condition and the exclusive possession and use of the property shall revert to Lessor: i I 16. Non -Discrimination. Lessee agrees, that there shall be no discrimination against or segregation of any person or group ofpersons because of race, color, creed, national origin, sex, sexual orientation, ancestry, marital status, physical handicap, or medical condition in the use occupancy or enjoyment of the .propeity,.nor shall Lessee, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of users of theproperty. 17. Waiver. The failure or omission -of Lessor to terminate this Lease for any violations of any ofits'terms, conditions, or covenants shall in no way be deemed to be a consent by Lessor to such violation, and shall in no way bar, stop, or prevent Lessor from terminating this Lease thereafter, either for such or for any subsequentviolation of any such term, condition, or covenant. 18. Signs. Lessee agrees that no sign, advertisement, or notices shall be inscribed, painted or affixed on or to any part or portion of the outside of the Leased Premises except to be of such type and color, size and style, and in such place as may be approved by Lessor. Any additional signage or changes, to existing signage after the Commencement Date will require' Lessee: to pay for and obtain all'regulatoryapprovals (permits)for the Leased • Premises. 19. Waiver of Relocation Assistance: In consideration for the execution of this Lease by Lessor, Lessee hereby waives'any claim for.re1oation assistance benefits to which it May otherwise be entitled under federal, state, or local law or regulations, upon vacation of the Leased Premises. 20. Americans with Disabilities Act. Upon commencement of this Lease, Lessee shall comply, at its sole cost, with requirements of ADA which provides for the removal of architectural barriers that prevent equal access to disabled persons on the interior of the Leased Premises. Through the duration of the Lease, Lessor shall comply, at its sole cost, with requirements of the ADA which provides for the removal of architectural barriers that prevent equal access to disabled persons on the exterior of the Leased Premises, Lessor' warrants that the Premises will be ADA compliant at the time possession is delivered to Lessee. 7 2011 Lease aelween,CirynfNational C'ity.ong Dap and Olds Clubs ofGower Sao Diego Attashmoni3 21. Compliance with Bnvimnmental and Other Laws. Lessee shall not engage in activities upon the Leased Premises, or any portion thereof, 'for the purpose of or anyway involving the handling; manufacturing, treatment, storage,, use, transportation, spillage, leakage, dumping, discharge or disposal (whether,legal or illegal accidental or intentional), or any hazardous or, toxic substances, materials or wastes, or any wastes regulated under any local, state, or federal law; provided, however, normal quantities and use of those hazardous or toxic substances or materials customarily used in the conduct of Lessee's permitted uses, such as paints, stains, solvents, and similar materials, may be used and stored by Lessee at the Leased Premises. Lessee shall be, and remain for the tern of this Lease, in full compliance with all applicable laws governing the use and occupancy of the Leased Premises. including, without limitation, the handling,. manufacturing treat rent;,storage, disposal, discharge, use, and transportation of hazardous.or toxic substances, materials or wastes, and any wastes regulated under any local, state, or federal. law. Lessee has been advised that no digging or excavation at theaite will be authorized without appropriate environmental oversight 22. Obstruction. Except as permitted bythis L ease, and except for those materials customarily used in the conduct of Lessee's permitted uses, Lessee shall not place, install, maintain, or allow any combustible materials in buildings, structures, or other improvements upon the Leased Premises, and shall not cause or allow the surface elevation therein to be changed in any way whatsoever, without, prior written approval of Lessor's City Manager or designee, 23. J;essee's Obligation to Ouit. Lessee shall, upon termination of this Lease, leave and peaceably and quietlysurrenderdeliver' to Lessor the Leased Premises and all improvements, buildings, and fixtures hereon or constituting a part thereof, and any replacements or renewals' thereof in a good condition, order, and repair as true same were at the Commencement Date or thereafter may have been put, reasonable wear and use excepted. Notwithstanding the foregoing or anything in this Lease to the contrary, Lessee shall have the right at any time during this Lease'to remove from the Leased Premises Lessee's trade fixtures, furniture, equipment, and personal property, provided that Lessee repairs any damage caused by such removal. 24. Termination. This Lease may be;tei'minated as follows: a. hi the event that during the term of this Lease, funding to operate the Club is either eliminated or reduced' to a point so as to render continued operation: of the Club impractical or impossible, Lessee may terminate the Lease upon ninety (90) days' written notice to Lessor. b. By Lessor, in the event the Leased Premises must be reclaimed for public use due to the requirements of a governmental agency, such as the U.S. Army Corps of Engineers, upon one (1) year's notice. In the event the 8 2011 Leese Between City ofWational Gtyand Boys and O(rtsClubs of Omler Son Diego Leased Premises are reclaimed for public use due to the requirements of a governmental agency, Lessor will provide, to the extent it determines its resources will allow and without any financial obligation on Lessor's part, assistance to Lessee in the relocation of Lessee to an alternative site substantially the same as the Leased Premises and acceptable to the Lessee for the purposes and operation of the business of Lessee. c. By Lessor upon the occurrence of one or more of the following defaults ' ("Defaults"), and the failure of Lessee to cure any such Default within any applicable grace period. i, The failure of Lessee to provide reasonable evidence of insurance ' within thirty(30) days of the renewal of any policy_ required herein; ii. Tlie failure of Lessee to, fulfill any obligation of Lessee under this Lease which endangers or threatens life or property, where such failure continues fora period of five (5) business days following written notice from Lessor. iii. A failure by Lessee to perform any materialobligation of Lessee (other than those described above), where such failure continues for a period of thirty(30) days after written notice from Lessor, provided, however, that if the nature of Lessee's failure to perform is such that more than thirty (30) days are reasonably required for its cure, then it shall not be deemed to be a Default if Lessee commences such cure within said thirty (30) day period, and thereafter diligently prosecutes such cure tocompletion. iv. The failure by Lessee in conducting its activities to adhere to the provisions of the Requirements for Membership as a Member Organization of the Boys and Girls Club of America, as amended from'time to time, the current version of which is attached hereto as Exhibit "C" and incorporatedherein by reference d. I Hy Lessee, for Lessor'a breach of any covenant, obligation, or condition contained in this Lease which is not cured within thirty (30) days immediately following written notice from the Lessee of such alleged breach, provided, however, that if the nature of Lessor's failure to perform is such that more than thirty (30) days arereasonably required for its cure, then it shall not be deemed to be a Default if Lessor commences such cure within said thirty; (30) day period, and thereafter diligently prosecutes such .Cute to completion. e. By mutual agreement of the Parties hereto. f. By expiration of the Tenn. 9 2011 rase Bataan City or National City and Boysend Girls Clubs of GreateraoatNgu ntteek..cafJ g. Notwithstanding anything in this Lease to the contrary, upon termination of the Lease; neither Lessor nor Lessee shall have any further obligations or responsibilities under the Lease (Violating to, the Leased Premises, and each party shall be deemed to have released the other from any such further obligations or responsibilities without the need for farther action; Notwithstanding the foregoing, each party shall remain responsible to the other for any obligations arising under the Lease which oocurred.prior to such date of termination. 25. Lessor Remedies upon a Lessee Default. If Lessee is in Default -and has failed' to cure such Default withiitany applicable grace period,'Lessor may, at its option, perform such duty or obligation giving rise. to the Default on behalf or Lessee, including but no !baited to' the obtaining of reasonably required' insurance policies, or government licenses, permits; or approvals. The costs and`expenses of any such performance by Lessor shall be due and payable by Lessee within ten (10) days of receipt of invoice therefore,. If any check given 10 Lessee shall not be honored by the bank upon which it is drawn, Lessor, at its option, may require all future payments to be made by Lessee to be by cashier's check. In the event of a. Default which Lessee has failed to cure within any applicable grace period, or undertaken reasonable action to cure within any applicable grace period, Lessor may, with or without future notice or demand, and without limiting Lessor in the exercise of any eight or remedy which Lessor may have by reason of such Default, terminate the Lessee's right to possession of the Leased Premises by any lawful means; continue the Lease; and for pursue any other remedy now or hereafter' available under -the laws or judicial decision of the,State of California. 26. Lessee's Remedies Upon a Lessor Default. Lessor shall be.hr.default under this Lease ("Lessor Default") if Lessor fails to perform any of the obligations'of Lessor under this Lease, and suchfailure continues for a period of thirty '(30).a days after written notice from Lessee; provided, however, that if the nature of Lessor's failure to perform is such that more than(30) days are reasonably required for itscure, then it shall not be deemed to be a Lessor Default if Lessor commences such cure withinsaid thirty (30) day period and thereafter diligently prosecutes such cure to completion. The rights and remedies of Lessee upon a Lessor Default shall be cumulative; and upon a Last Default'Lessee may pursue any and' all rights and remedies at law or in equity, w ether at,the same time or otherwise. 27 j szardous'Substances. Lessee shall indemnify, protect, and hold "harmless Lessor and each of its respective subsidiaries from and against all costs and damages incurred by Lessor hi connection with the presence, emanation, migration, disposal, release, or threatened release of any oil or other petroleum products or hazardous; materials or substances on, within, or to or from the Leased Premises as eresult of (i)the operations ef Lessee after the Commencement Date, and (ii) the activities of third parties affiliated with Lessee or invited, on the Leased Premises by Lessee after the Commencement Date andduring'the term of this 10 2011reese Bctxeen CilyofNational City and Boys and Girls Clubs of Gana am Diego Attoohniont a Lease. Each party agrees that such party will promptly give written notice to the other party of any investigation; claim, demand, lawsuit, or other action by any governmental or regulatory agency or private party involving the Leased Premises and any hazardous substance or environmental law of which such party has actual notice, 28. Taxes. Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation; and that Lessee may be subject to the payment ofpropertytaxes levied onsuch interest Lessee further agrees to pay any and all property taxes, if any, assessedduring the term of this Lease, pursuant to Section 107 and 107,1 of the Revenue and Taxation Code, against Lessee's possessory interest in the Leased Premises. 29. jtepresentations and Warranties. The parties represent and warrant that they have powers adequate for the execution, delivery, and performance of their obligations under this Lease; they have taken all necessary actions required to make this Lease the valid and enforceable obligation it purports to be, and this Lease has been duly executed and delivered. 30. Severability Choice of Law. If any provision of this Lease shall be declared to be void or unenforceable either by law or by a court of competent jurisdiction, the validity or enforceability of remaining provisions shall not thereby be affected. 31. brokers. Each party hereto represents and warrants to the other that it has not dealt with any broker in connection with the Leased Premises or this Lease. Each party hereto hereby indemnifies and holds the other harmless from and against any liability for commissions due any broker of finder with whom such party has. dealtin connection with this Lease. 32. Mailings and Noticing. AII notices or other communications required or permitted hereunder shalt` be in writing,, and shall be personally delivered or sent by overnight mail (Federal Express or the dike); or sent by registered or certified mail,; postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile fax or email; and shall be deemed received upon the earlier of(i) if personally delivered, the date of delivery to the address, of the person to receive such notice; (ii);if sent by overnight mail, the business day following its deposit in such overnight mail facility; (» i) if mailed by registered, certified, or ordinary mail, three (3) days (five (5) days ifthe address, is outside the State of California) after the date of deposit in a post office, mailbox; mail chute, or other like facility regularly rnaintainedby the United States Postal Service; (iv) if given' by telegraph or cable, when delivered to the telegraph company with charges prepaid; or (v) if given by telex, telecopy, facsimile, fax, or email, when sent. • Any payment,, notice, request, demand, direction, or other communication delivered or sent as specified: above shall be directed to the following'persons: 11 2011 Ease Between City ofNationelCayund Boys and Obis Clubs ororcotec Si,, Diego To the Lessor: Chris Zapata City Manager City of National City 1243 National City Boulevard National. City, California 91950-4301 Email: ezapatawnationalcitvca.gov Phone: 619-3364240 Fax:- 619-336.4327 To the Lessee: Danny Sherlock President Boys and Girls Clubs of Greater San Diego; Inc. 115,West Woodward Escondido; CA 92-025 Email: dsherlock(alsdvouth .org Phone: 760-746-3315 Fax: 760-740-0240 N� h M'1 With a copy to:, Claudia G. Silva City Attorney City of National City 1243 National City Boulevard National City, California 91950.4301 Email: csilva(l ationalcitvca.eov Phone: 619-3364220 Fax: 619-336-4327 With a cony to: Laura Bright,'Esq. White and Bright, LLP 970 Canterbury Place Escondido, CA 92025 Email:, lbriahtta7,whiteandbrielit.com Phone: 760-747-3200 Fax: 760-747.5574 33. Entire Agreement. This Lease: supersedes any prior agreements, negotiations, and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer,agent, or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. 34. Construction. The parties acknowledge and agree that (Weeds party is of equal bargaining strength; (ii) each party has actively participated in the drafting, preparation and negotiation of this Lease; (in) each such party has consulted with or has hid the opportunity to consult with its own, independent counsel end such other professional advisors as such party has deemed appropriate, relative to any and all matters contdknpiated under this Lease; (iv) each party and such party's counsel and advisors have reviewed this Lease; (v) each party has agreed to enter into this Lease following suchreview and the rendering of such advice; and (vi) any rule or construction to the effect that ambiguities are to be resolved against` the drafting party shall not apply in the interpretation of this Lease, or any portions hereof, or any amendments hereto. 35. No Agency. Nothing in this Lease Agreement shall cause or imply any agency relationship or duty between Lessor and Lessee. .36. Counterparts. This Lease maybe signed in counterparts. 12 201) rate Between Chy of Notional City and Boysand.Girls Clubs of Greeter Sanicgu Mug—e^t ? 37. Recordation. This Lease may be recorded by either party hereto. IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written. CITY OF NATIONAL CITY By. • Ron Morrison; Mayor • THE BOYS & G r CLUBS OF GREATER SAN DIE fro inrurton ; . .re oqw annySherlock President and CEO Robert Burson. Board Chairman 13 2011 lease Dawes atr efN al".1 City..d Boys and Girls Clubs ofGeata Sao Diego Aft. h nf'1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ) CbuntyofSan Diego ) On August 22, 2011, before me, Virginia Miller,: Notary Public, personally appeared Ron Morrison, who 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 thathe 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing. paragraph is true and correct. WITNESS my hand and official seal. 1 SigoreofNotary lic VIRGIRIA MILLER Commission di 113740E2 Ronry Pubic -San Diaio Co9tortlo C�EIMlK�vONO) rt Place Notary Seal Above Attachment 3 OAL6IF®li9Pi10A ALBARLISPOSIE lieGEN®8JLlEgDIME ITt State of Californiaor County of dca11 l/a On 1-a i 1l beforeme Personally appeared )01, rt ►19 } Lack ref- rVT' .Notary:Public *mined Rune And T o 015 . .!CMi-'d e- LAURA II. BRIGHT .. Comnaralon r' 182011 Notary Public • COBori a Cotten , My Comm. berm Po 22,21112 xs_ sa_r sa 0. NTkT Above, who proved to me on the basis of satisfactory evidence to be the person.* whose notelets/gee subscribed to the within Instrument and acknowledged to me that he/shelter executed the same In hlslpeWirper authorized capacity($$, end that by hls/Der/ttir signatures on the Instrument the person's.), or, the entity upon behalf of :which the person(sj acted, executed the instrument: 1 certfy under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and; correct. WITNESS my hand and official seal. Signature: 4' OPTIONAL sonw dNa�Prb Though the information below fc not mulled try laW,11 ratty prove vaWable Po persons relying on the. document and could prevent fraudulent emend and reaaachmemor Nis firm to another doa menl. Description Of Attached Dofument Title or Type of Document: F-P.11-• Document Dater 5lgner(a) Other Than Named Above. Cepaelty(tes) CI, imed by Slgner((s) Signer's Name:-v61"n, 0 Corporate Officer --Taiga): n Individual O Partner —CILimited 0General 0 Attorney In Fact ❑ Trustee 0 Guardian or Conservator 0 Other. Signer Is Representing: top of thumb here Number of Pages: . IJ Signer's Name: J Corporate Officer — Tltle(s): O Individual ❑ Rattner — U Limited 0 General E Attorney in Feet C Trustee flGuerdian;or Cimeervator rlother. Signer Is Representing: fi1Cy•It.'l.pj 9roefuntujf 7.7_ ) ORM Has NANsoe•e.,**n• NI ,cue • 14n011S NOTARY't1t65bT66d2T) INin ASKO Attachment 3 CALI7OGNIt$ ALIL•IiaQEQ@{P©SE ACKNOWLEDGMENT State of California County of a:in, 1 eg0 On 11Zl.l781.1 before me Yviil t 1w 'Pltk NO}ot R11 t•c .n�1_� Nmn�rl No1!IoOMIXMNeN00kat, personally appeared f"c�vr -t'• :i(A 12-Se Amno14o1 } Pbw NpLyy600u Above who proved lome on the basis,of satisfactory evidence to be the personffty whose name(ej'istard subsotibed to the within instrument and admowledged to me that hef& teHHey elect/led the same In his/Melia authorized capac ty(es), and that by hisfheritlteir signatures) on the instrument the person(e), or the entity upon behalf of which the person(er acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the Stale cif California that the foregoing paragraph Is true. arid correct. WITNESS my hand and official seal: Signature e A tip OPTIONAL Though the lnfomiat5on befowl not required by law• fi may prws valuable to personsreying on the document, and Could prevent fraudulent *einem!and reattaGhmere of Vila loan to wafter document Description of Attached Document Title or Type of Document: Document Date: Numbe ' . gea: Signer(s) Other ll= Named Above: Capacity(Ies) Claimed by,Signer(s) Signer's•Name• C 'Individual .. C Corporate Ottcer—•Tltle(s)• Partner —,CLimited OGe fl Aaomeyin Fact 0 Trustee 0 Guardian or Co aor 0 Other Signer Is epreirendng: N o 1piNUrgel;pnn OF'�I�IJGn Tppol lnwrb hero Signer's Name: Odndividual ❑ Corporate Officer —MOO ❑-Perigee— 0, Limped UGeneral Attorney In Fact ❑ Trustee 0 Guardian CI Conservator O Other: Signer' Is Representing. .. .. O2WrNebiWN?WT ao*Yon.035011, atoAve..PA.9aft4E0- INermre.on 01313.2/02:.wnw.W5vroNooyon 0oo00007 Poudm:C011oAFree16Ee6/6-6827 Atlachment 3 EXHIBIT A" That portionofBlocks 3 and 4 per Map No. 552, Records of San Diego County, California, November 4,1914, together with closed and vacated to public use portions of 141' Street; 151' Street end C Avenue, described as follows: COMMENCING at the Southeast corner of said Block 4; Thence along the Southerly prolongation of the Easterly line of said Block 4; South 17°47'04" East, 4.24 feet to the POINT OF BEGINNING; 1. Thence leaving said line, South 71 ° 56' 15" West, 249.51 feet; 2. Thence South 28° 47b7" West, 16.17 feet, 3. Thence North79° 32' 30" Watt,9.76 feet; 4. Thence North 88°10' 29"West,10.10 feet; 6: Thence South 81° 39' 55" West, 10.18feet; 6. Thence South 68° 32' 00° West, 48.87 feet; 7. Thence North 71' 20' 62" West, 29.89 feet•, 8. Thence North 67" 43' 17" West 19.80 feet 9. Thence North 61 ° 15' 54" West, 39.52 feet:. 10. Thence North 30° 13' 16" West, 15.13 feet; 11. Thence North 23° 22' 20"East, 37.e8 feet; 12. Thence North 37 26' 19" East, 69.13 feet; 13. Thence North 43° 43'42" East, 79.18 feet; 14. Thence North 51 ° 18' 19" East, 19.29'feet; 15. Thence North 60° 34' 10" East, 128.19 feet; 16. Thence North 16° 40' 03"West, 41.65 feet, 17. Thence North 34° 52' 24" East, 27.92 feet; 18. Thence North 71° 34' 26" East, 89.80 feet to the Northerly prolongation of Easterly une ot: said block 4; 19. Thence along said line, South 17° 47' 04° East, 266.11 feet to the POINT OF BEGINNING. Said land contains 75, 760 S.F., more or less. This legal description has been prepared by me, or under my direction, In conformance with the Profersi hal •/nd(Surveyors Act. Signature: Jof�n Ft. Berggren, L.S. 6000 �kq' VifiO Uc nse Expires' 12/31/2010 Date: January 4,.2009' UNE, TABLE LINE BEARING'. DISTANCE LINE ,BEARING DISTANCE 11 571'56'15°W 249.51' 1.11 5232210'W 37.88' L2 S28'47'57'W 16.17' L12. N37'26'197 69.13' 13 S79'32'307 9.76' : 'L13 943'43'42 E :79.18' L4 S8810'29"E . 10.10' L14 N5116'197 _ .19 28' L5 N8119'557 40.18' L15 S601410"W 125.19' L6 N6832'007 48.87 L16 S1610'037 41.65'_ L7 ; 'S7V20'SYE 29.59.' . LI7 ; S34'52'24"W' 27.92' L8' N67'43'17'W 19.80' L18 ; S71'34'26"W_' 89.80' L9 , N61'15'54"W. 39.52' L19 ' . S17'47'04"E. 266.11' L10 S3013'167 15.13' - % $ sT i'• r •`r i \ ,�.� r \ Vk BLOCK 4 \ \, POINT OF MAP 552 ! °co.IME JCruENT (T , ( NTMEER ST • LEASECURRENT \, � AREA BLDCK 4 4 24' BLOClf'.3 may. �, \ 1? POINT OF L10.' \ \ . L4 '' BEGINNING 49 L2 kg. 15L3 NEW LEASE AREA = 75,670 SF Attachment 3 Exhibit SCALE 1.= 100' 11 IN ASSOCIATION WITH: T !TI TECH BERGGREN & ASSOCIATES LAND SURVEYING AND RIGHT OP WAY MAPPING. 6046 CORNERSTONE COURT WEST 1116• SAN DIEGO, CALIFORNIA 92121 (858) 824-0034 / (656) 824-0036 EXHIBIT"C' Depiction of the Premises Club hereby Subleases to EC Services that portion of the Club's Facility as follows: Sublease -BOYS' AND GIRLS' CLUBS AND EC SERVICES. NATIONAL CITY BRANCH 29 Attachment 3 leluir.• 1dI6jrulandae.v di1 •pis; "�`ar§a -_ •y 2 dC�Llra' _erre, arms. +,.vv wc:.ry..w+e9a1. as my • Mtn nue avw � vivn COMILIMIS �ulw¢ei � 61F P¢6¢.1m¢ P49U9PLti1 11 __ i.aa.V1 rgeMirMlli if°' m • 4ax alm v: w¢o..m+. �r�.e�e.m.o.. -E7- - � O:. Plikt PU11. 990.9 i '14./a. Exhibit C - Youth Center Area within outline only MAW A2.! Attachment 4 SUBLEASE This Sublease ("Sublease") is effective JD- ®1EffectiveDate")between the BOYS & GIRLS CLUBS OF GREATER SAN DIYGO, a Califomia nonprofit corporation (the "Club" or "Landlord') and INTEGRITY CHARTER SCHOOL ("Integrity" or "Tenant") (each a "party" and collectively the "parties"). RECITALS A. The Club leases the real property located at 1430 "D" Avenue, National City, California 91950, County of San Diego, State of California (the "Property" sometimes referred to as the"Payne Family Branch"), as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, from the City of National City ("City"). A true and correct copy of said Lease between the Club and. the City of National City is attached hereto as Exhibit "B" and incorporated herein by reference. B. Pursuant to the Lease between the City, Club is granted the right to sublet the Premises only with the prior written consent of the City. Therefore, the effectiveness of this Sublease is expressly made contingent upon the Club's receipt of the City's written consent as set forth below. C. Integrity desires to sublease a portion of the Property as defined below for the purpose of operating a Charter School for grades kindergarten through second, grade and the Club desires to sublease a portion of the. Property to Integrity for said purpose. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration; the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Subleased Premises. Subject to the written approval of this Sublease by the City, the written consent hereto by the City and to the provisions of the Lease between the City and the Club, the Club hereby subleases to Integrity and Integrity subleases from the Club, upon all of the terms and conditions set forth in this Sublease, a portion of the Property including six (6) identified classrooms for kindergarten through secondgrade, use of the boys' and girls' bathrooms, use of the computer lab, and use of the gymnasium, as shown on the attached Exhibit "C" incorporated herein by reference (the "Premises") as well as non-exclusive use of the common areas as described below. Integrity shall have no right of possession of any remaining portions of the real property or improvements located thereon. This Sublease subordinates to the applicable covenants and conditions of the Lease between the City and the Club. In the event of conflict between the Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER,SCHOOL NATIONAL CITY BRANCH 1 Attachment 4 provisions of this Sublease and those of the Lease between the City and Club, the Lease between the City and the Club shall control. Portions of the Property are subject to shared use by Integrity, the Club and other users, including but not limited to the gymnasium computer lab, bathrooms and common access ways ("Common Areas") (collectively "Shared Use Space"). The specific hours ofuseofportions ofthe Premises are more particularly set forth in Section4.5 below. For all additional or incidental use, if any, the parties shall use their best efforts to cooperate with the scheduling and shared use. 2. Term. 2.1 Unless soonerterminated under the terms of this Agreement, the term ("Tenn") of this Agreement is for a period of two (2) years commencing on July 14, 2014 ("Commencement Date') and terminating at the close of business on July 13,2016. The parties agree that each school year Term of this Agreement shall conform as closely as possible to that of the school schedule of the National City School District. 2.2 Extension/Renewal of Term. Integrity shall have one (1) option to extend the Term of this Sublease for 911l one (1) year term ("Renewal Tenn"), which option must be exercis 0�N g no lat 'a j ece n -3r 2015. In the event no option is. exercised in writing''"{': der 31 2015, the Club will assume that Integrity will not renew the agreement and may negotiate an agreement with another user. If this option is exercised, references in the Sublease to the Term shall include the Renewal Term Upon exercise of the option to renew, the Term shall be extended through the expiration date of the renewal term on the same terms and conditions as contained herein. The option may not be exercised if Integrity is in default or in. breach of any term in this Sublease, or if: after exercise Integrity becomes in default or breach, the Extended Term will be of no force or effect. 2.3 Possession; Acceptance of Premises. By signing this Agreement, Integrity represents and warrants that it has independently inspected all of the Premises and adjunct facilities and made all investigations, and observations necessary to satisfy' itself of the condition of the Premises and adjunct facilities and accepts the Premises in an "as -is" condition. Integrity acknowledges and agrees that it is relying solely on such independent inspection, tests, investigations, and observations in making this Agreement. Integrity h reby accepts the Premises in the condition existing as of the Sublease conunencement date as set rth herein, or the date that Tenant takes possession of the Premises, whichever is earlier, subject to all applicable zoning, municipal, county, state and federal laws,ordinances and regulations governing and regulating the use of the Premises and any covenants or restrictions. Integrity acknowledges that the Premises is in the condition called for by this Agreement and Integrity does not hold the Club responsible for any defects in the Property or the Premises. The Club is not aware whether the Property has or has not been determined, pursuant to a report prepared in compliance with Civil Code Section 55.53 to meet all applicable construction -related access standards. Nor is the Club aware whether there has Sublease -BOYS' AND GIRLS' CLUBS. AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 2 • Attachment 4 been any review of the Property for any ecologically sensitive areas, including but not limited to wetlands, flood plains, aquifers or conservation areas. Further, Integrity acknowledges that neither Landlord nor Landlord's agent, if any, has made any representation or warranty as to the present or future suitability of the Premises: for the conduct of Tenant's business. 3. Rent. 3.1 Base Rent. Tenant shall pay to Landlord Base Rent as mitiimum monthly rent, without deduction, setoff, prior notice, or demand the sum, of $5,000 per month for the ten (10) months of this Sublease and school year. Monthly installments of Base Rent shall be payable monthly, in advance, on the first day of each month. The first month's rent shall be paid upon execution of this Sublease. The rent for any partial month, including but not limited to July, 20I4, shall be prorated on the basis of a thirty (30) day month. Rent shall be paid in lawful money of the, United States to the Club at the address set forth on the signature page of this Sublease or to such other person or at such other place as Landlord may designate in writing. 3.2 Membership Fees. The parties acknowledge that the Club is separately contracted to run the after -school program ("ASES") for students enrolled at Integrity in grades 1-8. In addition to the Base Rent, Integrity shall pay to the Club $30 per student for those students not eligible in ASES.. Said Membership Fee shall be due and payable to the Club on, date the first installment of Base Rent is due and thereafter on any date that a new student enrolls in Integrity without eligibility in ASES. 3.3 Conditional Use Permit. The Club shall use its best efforts to obtain a Conditional Use Permit for Integrity to operate at the Premises, however the Club makes no representation or guarantee whether or when the City of National City will issue the permit. The Club shall be responsible for the costs associated with the acquisition of a new Conditional Us Permit required for the operation of a charter school not to exceed the sum of $'450 0, OD "e In the event the Club is unable to obtain the Conditional Use Permit, Integrity may terminate this '� Sublease in writing with no liability to either party: 4. Use. 4.1 Ds., Integrity shall use that portion of the Property subleased to Integrity only for Integrity's Charter School program Mondays through Fridays at the hours set forth in Section 4.5 below, with a maximum limit of one hundred (100) children, located on the Premises at any one time, and for no other purpose. 4.2 Compliance With Law. Tenant shall comply with and observe all statutes, ordinances, regulations, orders and decrees of federal, state and city governments, or any departments, bureaus or agencies thereof, and all covenants and restrictions and requirements. regulating the use of the Premises, whether now in force or promulgated in the future. In addition, Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH Attachment 4 Integrity shall comply with and observe all rules and regulations of the City and the Club whether now in force orpromulgated in the future. Any and all expense resulting from such compliance shall be born by Tenant. Tenant shall not use nor permit the use ofthe Premises in any manner which will tend to create waste or a nuisance or shall tend to disturb any other tenants in the building in which the Premises. 4.3 Integrity acknowledges and agrees that the Club's primary purpose is to provide after school and school break programs for the children of the community. If Integrity's schedule deviates from that of the local schools, Integrity acknowledges and agrees that the Club's programs will run as normal and thatthe space will be shared between the Club. and Integrity for that time period, with the Club's use of primary; concern. The parties shall work together to review the calendar and develop a planfor days wliere both programs will be running simultaneously, if any. 4.4 Integrity may utilize existing Chib furniture and equipment and may also furnish the Premises ,with .additional items. However any furnishings provided by Integrity and their use within the Premises shall be approved in writing in advance by the Club. Integrity shall furnish all of its own materials and program supplies. 4.5 Hours of Use. Integrity shall have use of the following areas for the indicated time periods: Classroom Space 8:00 a.m. until 3:00 p.m. Mondays through Thursdays 8:00 a.m, until .1:00 p.m. Fridays Computer Lab, and Gymnasium 8:00 a.m. until2:00 p.m. Mondays through Thursdays 8:00 a.m. until noon Fridays 5. Maintenance, Repair. and Alteration of Premises. 5.1 Landlord's Obligations For Repair and Maintenance. Landlord shall repair and maintain in good condition the Premises as required in the Lease between the City and the Club. To the fullest extent allowed by law, Tenant hereby expressly waives the benefits of any statute now or hereafter in effect including, but not limited to, Civil Code Sections 1941 and 1942, which would otherwise give Tenant the rightto make repairs and deduct the cost thereof from rent or the right to terminate this Sublease because of Landlord's failure to keep the Premises in good order, condition and repair. 5.2 Tenant's Obligations For Repair and :Maintenance. Tenant shall, at Tenant's soleexpense, keep in good order, condition and repair the Premises and all parts thereof (whether or not the damaged portion of the Premises or the means of repairing the same are reasonably or readily accessible to Tenant) including, without limitation, all glass, doors, frames, Sublease.BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 4 Attachment 4 plumbing, heating, air conditioning, ventilating and electrical, systems, lighting facilities, fixtures, interior walls, interior surface of exterior walls, ceilings, glass and skylights, and all of Tenant's personal property within the Premises. All operation and maintenance, repair and replacement shall be make in compliance with all applicable laws and governmental regulations. If Tenant fails to perform Tenant's obligations under this Paragraph 5.2, Landlord may, at Landlord's sole option, enter the Premises.and perform such obligations on Tenant's behalf and put the Premises or any part thereof in good repair. The cost therefor, together with interest thereon at the maximum rate then allowed by law, shall be immediately due and payable asadditional rent to Landlord. Tenant shall not cause or permit any waste or injuryy to the Premises and shall keep the Premises free from any and all objectionable noises, odors, rubbish and debris inconsistent with the proper operation of Tenant's usual business thereon. Tenant shall further conform toall rules and • regulations now or hereafter established by Landlord for the general safety, care and cleanliness of the Premises, and the comfort, quiet and convenience of other tenants of the building, if any. Landlord shall not be responsible to Tenant for the nonobservance or violationofany such rules and regulations by any other tenants or users. • 5.3 Common Areas. Common areas ("Common Areas") means all areas and facilities outside the Premises and within the exterior boundaries of the real property on which the Premises is located and which are for the general use and convenience of Tenant and other tenants, if any, of the building. Common Areas include, without limitation, sidewalks, entrance ways, service areas, patios, landscaped areas, hallways, public restrooms, stairways, parking areas, driveways, roadways, loading areas, elevators, and hallways. Landlord shall repair and maintain the Common Areas in good condition. Landlord may establish and enforce reasonable rules and regulations concerning the Common Areas. Further, Landlord may temporarily close any of the Common Areas for maintenance or repair purposes. Landlord may select a person or organization to maintain and operate any of the Common Areas. Landlord shall also have the right to make changes to the Common Areas including, without limitation, changes in the location of driveways, entrances, exits and parking spaces. 5.4 Alterations, Additions and Improvements. Tenant shall not make any alterations, additions or improvements to the Premises without the prior written consent of Landlord. If such consent is granted, any such alteration, addition or improvement shall be made: in accordance with allapplicable federal, state and municipal laws, rules and regulations as well as all covenants and restrictions. This paragraph shall specifically include carpeting, window cover' tgs, air lines, power panels, electrical distribution systems, lighting fixtures, space heaters, air conditioning, • plumbing, cabinets and fencing. If Landlord grants such consent, Landlord may require Tenant to remove any and all such alterations, additions or improvements at the expiration of the Term and restore the Premises to its condition as of this commencement of this Sublease. If Landlord does not require such removal and restoration, all alterations, additions and improvements shall become the property of Landlord and remain upon and be surrendered with the Premises at the expiration of the Term. Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 5 Attachment 4 Tenant shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Tenant at or for use on the Premises, which claims are or may be secured by any mechanic's or materiahnen's lien against the Premises or any interest therein: Landlord may also require Tenant to provide Landlord, at Tenant's sole cost and expense, a lien and completion bond in an amount equal to 1 1/2 times the estimated cost of such alterations, additions or improvements to insure Landlord against any liability for mechanic's and materialmen's liens and to insure completion ofthe work. The bond shall meet the requirements of Civil Code Section 3143. If Tenant shall, in good faith, contest the validity of any such claim, lien, or demand, then Tenant shall, at its sole expense, defend itself and Landlord against the same and shall pay and satisfy any such adverse judgement that may be rendered thereon before the enforcement thereof against the Landlord or the. Premises, upon the condition that if Landlord shall require, Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to such contested lien, claim or demand indemnifying Landlord against liability for the same and holding the Premises free from the effect of such lien, claim or demand. In addition, Landlord may require Tenant to pay Landlord's attorneys fees and costs of participating in such action. Tenant shall give Landlord not less than fifteen (15) days written notice prior to the commencement of any work in the Premises, and Landlord shall have the right to post notices of nonresponsibility in the Premises. Any proposed alterations, additions or improvements shall be presented to- Landlord 'in written form with detailed plans. If Tenant makes any alteration,' addition' or improvement without the prior written consent of Landlord, Landlord may require Tenant to remove any or all of the same. 6. Insurance and Indemnity. 6.1 Liability Insurance. Tenant shall, at Tenant's sole expense, �btain and khep in force during the Term of this Sublease a policy of public liability insurance including combined single limit bodily injury and property damage insurance insuring Landlord, Tenant, and City against any liability arising out of the ownership, use, occupancy and maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be a combinedsingle limit policy in an amount not less than Three Million Dollars ($3,000,000,00) per occurrence: The policy shall insure performance by Tenant of the indemnity provisions of paragraph 6.4. The limits of the insurance shall not, however, limit the liability of Tenant hereunder. Certificates of Insurance showing Landlord as an additional insured shall be provided to Landlord within ten (10) days of execution of this Sublease and each time said policy is renewed. In addition, Landlord may in Landlord's sole discretion, prohibit Tenant from taking possession of the Premises unless and until Tenant provides a valid Certificate of Insurance as set forth in Section 61 above: a. Tenant's Failure to Obtain Insurance, If Tenant fails toprocureand maintain any insurance required by paragraph 6.1, Landlord may, but shall not be required to, Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 6 Attachment 4 procure and maintain such insurance.' Tenant shall immediately reimburse Landlord for all costs therefor together with interest thereon at the maximum rate then allowed by law. b. Increase of Insurance: Tenant shall not operate, occupy, maintain,. or use the leased portions of the Property in such a manner as to result in cancellation' of the Club's insurance or that results in an increase of the Club's liability and/or property damage insurance. In the event that the Club's insurance is increased solely by reason of Tenant's use, occupancy, maintenance, or operation of the leased premises, then Tenant shall promptly reimburse the Club for such increased cost upon demand by the Club. The Tenant acknowledges that it shall have the sole responsibility for maintaining property damage insurance on its fixtures and equipment and other personal property located atthePremises. c. Insurance Policies. Insurance required hereunder shall be with companies holding a general policy holders rating of at least A, or such other rating as may be required by a lender having a lien or the Premises, as set forth in the most current issue of Best's Insurance Guide. Tenant shall deliver to Landlord copies of the policies of insurance or certificates evidencing the type and amount of the insurance for all insurance required to be maintained by Tenant. No policy shall be cancelable orsubject to reduction in coverage or • other modification except after thirty (30) days prior written notice to Landlord. Tenant shall, at least thirty'(30) days prior to the expiration of such policy, furnish Landlord with renewals or binders thereof, or Landlord may order such insurance and charge the cost thereof to Tenant, which amount shall be payable by Tenant upon demand. Tenant shall not do or permit to be done anything which will invalidate any insurance policies required in this Section 6. All policies of insurance shall name Landlord (and at Landlord's option any additional parties designated by Landlord) and city as an additional insureds. 6.2 Indemnity. Tenant shall indemnify and hold Landlord harmless from and against any and all claims arising from or relating to Tenant's use of the Premises; or from the conduct of Tenant's business or from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises or elsewhere on the' Property. Tenant shall further indemnify and hold Landlord harmless, from and against any and all claims arising from any breach or defaultin the performance of any obligation of Tenant under this Sublease or arising from any negligence of the Tenant or any of Tenant's agents, contractors or employees and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If any action or"proceening is brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in; upon or about the Premises arising from any cause and Tenant hereby waives all claims in respect thereof against Landlord. 6.3. Exemption of Landlord from Liability. Tenant hereby agrees that Landlord shall not be liable for injury to Tenant's business or for any loss of income therefrom or for damage Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 7 Attachment 4 to the goods, wares, merchandise or other property of Tenant, Tenant's employees, invitees, customers or any other person in or about the Premises. Further, Landlord shall not be liablefor any injury to Tenant, Tenant's ernployees, agents or contractors whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain or from breakage, leakage, obstruction or other defects of pipes, sprinlders, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the damage or injury results from conditions arising upon the Premises or upon other portions of the Building or from other sources or places and regardless of whether the cause of damage or injury or the means of repairing the same is inaccessible to Tenant. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant of the Building. 7. Damage or Destruction. 7.1 Partial or Total Damage or Destruction of Premises. In the event that the Premises, or any part of the Property used by Tenant is partially or totally damaged or destroyed, from any cause whatsoever, except through fault of Tenant, whether or not; such damage or destruction is covered by the insurance required under paragraph 6, then Landlord may, at Landlord's sole option, either: 1) restore the Premises or improvements on the Property to the condition existing imtriediately prior to such damage or destruction and this Sublease, shall remain in full force and effect; or2) terminate this Sublease immediately; provided, however, that if the cost of restoration of the damage or destruction is Ten Thousand Dollars ($10,000.00) or less and insurance proceeds are available for such restoration, Landlord shall repair the Premises to its condition existing immediately priorto the damage or destruction. Any damage caused through fault of the Tenant shall be repaired and restored to the condition existing immediately prior to such damage or destruction at the sole cost and expense of the Tenant. Tenant agrees that preliminary steps toward performing repairs,, restoration or replacement shall be commenced within thirty (30) days, and the required repairs, restoration, or replacement shall be completed within a reasonable time thereafter in a manner acceptable to Landlord, in Landlords sole discretion. 7.2 Abatement of Rent. If the Premises are partially or totally damaged or destroyed, and if Landlord restores the Premises under the provisions of paragraph 7.1, monthly rent shall beabated proportionately with the degree to which Tenant's use of the Premises is impaired commencing from the date of damage or destruction and continuing during the period of such, restoration until the restoration is completed so that Tenant may use the Premises for Tenant's usual business. 7,3 Waiver. Tenant waives the provisions of any statutes whichrelate to termination of Subleases or leases when the thing leased is destroyed and agrees that such event shall be governed by the terms of this Sublease. 8. Utilities. Tenant shall not be responsible: for payment of utilities including, but not limited to, water, gas, heat, electricity, power, sewer, garbage disposal and other services supplied Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 8 Attachment 4 to the Premises. The Club shall be responsible for payment of the telephone. 9. Licenses and Permits. It shall be the sole and full responsibility of Integrity, at its cost, to obtain all pefmits and licenses as are necessary to the use, operate, occupy and maintain the Premises for use by Integrity. 10. Default. 10.1 : Tenant's Default. The occurrence of any of the following shall constitute . a default by Tenant 10.1.1 Failure to pay rent or other sums when due. 10.1.2 Abandonment and vacation of the Premises (failure to occupy and operate the Premises for ten (10) consecutive days, other than scheduled vacation days, shall be deemed an abandonment and vacation): 10.1.3 Failure to perform any other provision of this Sublease (anonmonetary default) if the failure to perform -is not cured within thirty (30) days after notice has been given to Tenant. If the default cannot reasonablyy be cured within thirty (30) days, Tenant shall not be in default of this Sublease if Tenant commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. Notices given under this Section shall specify the alleged default and the applicable Sublease provisions, and shall demand that Tenant perform the provisionsof this Sublease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the Premises. No such notice shall be deemed a forfeiture or a termination of this Sublease unless Landlord so elects in the notice. The purpose of the notice requirements set forth in this paragraph is to extend the notice requirements of the unlawful detainer statutes of California. 10.1.4 Violation by Tenant of any provisions of any recorded documents affecting the Premises. 10.1.5 No interest of Tenant in this Sublease shall be assignable by operation of law. Each of the ollowing acts shall be considered an involuntary assignment and a default hereunder: 10.1.5.1 If Tenant is or becomes bankrupt or insolvent or is unable to pay Tenant's debts as they become due, makes an assignment for the benefit of creditors, or institutes a proceeding under the Bankruptcy Act in which Tenant is the bankrupt; or,, if Tenant is a partnership or consists of more than one person or entity, if any partner of the partnership or other person or entity is or becomes bankrupt or insolvent, or makes an assignment for the benefit Sublease,BOYS' AND GIRLS' CLUBS AND INTEGRITYCHARTER SCHOOL NATIONAL CITY BRANCH 9 Attachment 4 of creditors; 10.1.5.2 If a writ of attachment or execution is levied on this Sublease; 10.1.53 If, any proceeding or action to which Tenant is aparty, a receiver isappointed with authority to take possession of the Premises. An involuntary assignment shall constitute adefault by Tenant and Landlord shall have the right to elect to terminate this Sublease, in which case this Sublease shall not;be treated as an asset of Tenant. 11. Termination. This Sublease may be terminated as follows: 11.1In the event that during the term of this Sublease, governmental funding is either eliminated or reducedto a point so as to render continued operationof the Integrity Charter School impractical or impossible, Integrity may terminate this Sublease upon ninety (90) days' written notice to the Club. In` the event Integrity Charter School is terminated hereunder, Integrity shall, upon the written consent of the parents or guardians of the children then enrolled in the program, provide to the Club a record of all students then participating in the program, which record shall include each student's name, the name of the student's parent(s) or guardian(s), address and telephone number. The purpose for providing said records shall be to allow the Club, in its sole discretion, to continue providing Club services to said students; 11.2 By Club, for Integrity's breach of any non -monetary term, covenant or condition contained in this Sublease which is not cured within thirty (30) days immediately following written notice from the Club of such alleged breach; Sublease; 11.3 By the Club for the breach of any monetaryy term, covenant or condition of this 11.4 By mutual agreement of the Parties hereto; or 11.5 In the event that the Lease between the City of National City and the Club is terminated, for any reason, before the end of the Term of this Sublease, this Sublease shall terminate. 11.6 By Integrity in the event the Conditional Use Permit is not obtained. 11.7 )lxception to Termination. Notwithstanding the above provisions regarding termination this Sublease shall not be terminated prior to June 30 in any year for which Integrity has Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 10 Attachment 4 received funding for its charter school. 11.8 Surrender: Termination. Immediately upon termination of this Sublease, Tenant shall surrender the Premises to Landlord in the same condition as received, ordinary wear and tear excepted, cleanand free of debris. Tenant shall repair any damage .to the Premises occasioned by theinstallation or removal of its trade fixtures, furnishings and equipment: Unless Landlord requests the removal of said fixtures, all alterations, improvements and additions shall become the property of Landlord and remain upon and be surrendered with the Premises at the expiration of the Term. 12. Late Charges. Tenant hereby acknowledges that late payment by. Tenant to Landlord of rent and other sums due under this Sublease will cause Landlord' to incur costs not contemplated by this Sublease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed on Landlord by the terms of any mortgage or trust deed covering the Premises. Accordingly, if any installment of, rent or any other sum due. from Tenant is not received by Landlord within ten (10) days after such amount is due then Tenant shall immediately pay to Landlord a late charge equal to six percent (6%) of the overdue amount. The parties agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of the late charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted under this Sublease. If a late charge is payable hereunder, whether or not collected, for three (3) installments of rent, then rent shall automatically become due and payable quarterly in advance, rather than monthly, notwithstanding any other provision of this Sublease to the contrary. 13. Condemnation. (1) Definitions. "Condemnation" means: (a) the exercise of any governmental power, whether by legal proceedings or otherwise, by a condemnor; and (b) a voluntary sale or transfer by Landlord to any condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending. "Date of Taking" means the date the condemnor has the right to possession of the property being condemned. 1 "Award" means all compensation , sums, or anything of value awarded, paid or received on a total or partial condemnation. "Condemnor" means any public or quasi -public authority, or private corporation or individual, having the power of condemnation. Sublease -BOYS' AND GIRLS' CLUBS AND INrEGRTTYCHARTER SCHOOL NATIONAL CITY BRANCH • Attachment 4 If, during the Term or during the period of time between the Effective Date and the Commencement Date, there is a taking of all or any part of the Premises, Building, other improvements, or real property of which the Premises are a part or of any interest, in this Sublease by condemnation, the rights and obligations of the parties shall be determined pursuant to this Paragraph. (2) Total Taking. If all of the square footage in the Premises is taken by Condemnation, this Sublease shall terminate on the Date of Taking. (3) Partial. Taking. If a portion of the square footage but less than all of the square footage of the Premises or of the Building or the real property of which the Premises are a part, is taken by condemnation, Landlord, within sixty (60) days after the Date of Taking, may terminate this Sublease as of a date specified in a written notice given to Tenant by Landlord within that sixty• (60) day period. If Landlord does not give notice of termination to Tenant within that sixty (60) day period, then this Sublease shall continue in full force and effect; provided, however, that if a portion of the square footage but less than all of the square footage in the Premises is taken, monthly rent shall be reduced by an amount that is in the same ratio to monthly rent as the total square footage in the Premises taken bears to the total square footage in the Premises immediately before that Date of Taking. (4) Waiver of California Code of Civil Procedure Section 1265.130. Tenant waives the provisions of Code of Civil Procedure Section 1265.130 allowing a party to petition the superior court to terminate this Sublease in the event of a partial taking of the Premises, (5) Restoration of Premises: If there is a partial taking of the Premises and this Sublease remains in full force and effect Tenant at its cost shall accomplish all necessary restoration with no abatement of rent. (6) Award. The entire award shall belong to and be paid to Landlord except that Tenant shall receive from the award a sum attributable to Tenant's improvements or alterations made to the Premises by Tenant in accordance with this Sublease which Tenant has the right to remove from the Premises pursuant to the provisions of this Sublease but elects not to remove. 14. No Broker. Tenant represents that neither the Premises, nor any portion of the Property, was presented to it or to any person representing it by any broker or finder and that no broker or finder was involved in the leasing of the Premises.. Tenant warrants that no claim for commission forthe leasing shall be presented to Landlord: Further, Tenant agrees to indemnify and defend Landlord in the event of any such claims. 15. Assienment. 15.1 No Assignment. Tenant shall not assign or encumber its interest in this Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 12' Attachment 4 Sublease or in the Premises, or sublease all or any part of the Premises, or allow any other person or entity to occupy or use all or any part of the Premises, without first obtaining Landlord's prior written consent, which consent may be withheld in Landlord's sole and absolute discretion. Any assignment, encumbrance, or sublease without Landlord's prior written consent shall be voidable and, at Landlord's election, shall constitute a material default of this Sublease. No consent to any assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this Section. 15.2 If Consent is Given. If Landlord consents to an assignment or encumbrance of sublease, Tenant immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Sublease and shall immediately pay to Landlord all 'rent from any subletting of all or any part of the Premises as pennitted by this Sublease,; and Landlord, as assignee and as. attorney -in -fact for Tenant, may collect such rent and apply it towards Tenant's obligations. under this Sublease. All rent received by Tenant from any subtenants in excess of the rent payable by Tenant to Landlord under this Sublease shall be paid to Landlord, or any sums to be paid by an assignee to Tenant in consideration of the assignment of this Sublease shall be paid to Landlord if Landlord consents to a sublease or assignment. Tenant shall remain liable on the Sublease. If Tenant requests Landlord to consent to a proposed assignment or subletting, Tenant shall pay to Landlord, whether or not consent is ultimately given, Landlord's reasonable attorney'sfees incurred in connection with each such request. 15.3 Assignment by Operation of Law. No interest of Tenant in this Sublease shall be assignable by operation of law. Each of the following acts shall be considered an. involuntary assignment: 153.1 If Tenant is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors or institutes a proceeding under the Bankruptcy Act in which Tenant is the bankrupt; or, if Tenant is a partnership or consists of more than one person or entity, if any partner of the partnership or other person or entity is or becomes' bankrupt or insolvent, or makes an assignment for the benefit of creditors; 15.3.2 If a writ of attachment orexecution is levied on this Sublease; 15.3.3 If, in any proceeding or action to which Tepant is a party, a receiver is appointed with authority to take possession of the Premises. An involuntary assignment shall constitute a default by Tenant and Landlord shall have the right to elect to terminate this Sublease, in which case this Sublease shall not be treated as an asset of Tenant. 16. Estonnel Certificate. Tenant shall at any time and'from time to time, upon not less. than ten (10) days prior written notice from Landlord, execute, acknowledge, and deliver to Sublease -BOYS' AND: GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 13 Attachment 4 Landlord a statement in writing certifying certain, facts including, without limitation, that this Sublease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Sublease, as so modified,' is in full force and effect) and the dates to which the rental, the security deposit, and other charges, if any, are paid in advance, and acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, and no events or conditions then in existence which, with the passage of time or notice or both, would constitute a default on the part of Landlord hereunder, or specifying such defaults, events, or conditions, if any are claimed. It is expressly understood and agreed that any prospective purchaser or encumbrancer of all or any portion of the Premises or the Building or of the real property of which they are a part shall be entitled to rely upon any such statement. Tenant's failure to deliver such sta'tementwithin such time shall, at the option of Landlord, constitute a breach or default under this Sublease. If such option is not so exercised by Landlord, Tenant's failure shall be conclusive upon Tenant that (i) this Sublease is in full force and effect without modification except as may be -represented by Landlord; (ii) that there are no uncureddefaults in Landlord's performance; and (iii) that not more than one (1) months' rental has been paid in advance. If Tenant fails to deliver the certificate within ten (10) days, Tenant irrevocably constitutes and appoints Landlord as its special attomey-in-fact to execute and deliver the certificate to.a third party.. 17. Subordination. Tenant agrees uponrequestofLandlord to subordinate this Sublease and its rights hereunder to the lien of any mortgage, deed of trust or other encumbrance, together with any conditions, renewals, extensions, or replacements thereof, now or hereafter placed, charged or enforced againstthe Landlords interest in this Sublease and the leasehold estate thereby created, the Premises, the Building orimprovements included therein or the real property of which the Premises are a part, and deliver at any time and from time to time upon demand by Landlord any documents required to effectuate such subordination. 'In the event that Tenant fails, neglects or refuses to execute and deliver any such document withinten (10) days after receipt of written notice to do so and the receipt by Tenant of the document to be executed by it, Tenant hereby appoints Landlord, its successors and assigns, thespecial attorney-in-factof Tenant irrevocably to execute and deliver any and all such documents for: and on behalf of Tenant; provided, however, that Tenant shall notberequired to effectuate such subordination, nor shall Landlord be authorized to effect such subordination on behalf of Tenant, unless the mortgagee or beneficiary named in such mortgage, deed of trust or other encumbrance shall first agree in'writing:for the benefit of Tenant,that so long as Tenant is not in default under any of the provisions, covenants or conditions of this Sublease on the part of Tenant to be jCept and performed', that Tenant's quiet enjoyment of the Premises will not be disturbed or interfere with by any trustee's sale or by any action or proceeding to foreclose said mortgage, deed of trust or other encumbrance. In the event that the mortgagee or beneficiary of any such mortgage or deed of trust elects to have this Sublease a prior lien to its mortgage or deed of trust, then and in such event upon such mortgagee or beneficiary giving written notice to Tenant to that effect, this Sublease shall be deemed a prior lien to such mortgage or deed of trust whether this Sublease is dated or recorded prior to or subsequent tothe date of recordation of such mortgage or deed of trust. Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 14 Attachment 4 18. Intentionally left blank. 19. Interest on Past Due Obligations. Except as expressly herein provided, any"amount due to Landlord not paid when due shall bear interest at the maximum rate then allowable by law from the date due until paid. 20. Notices, Any notice, demand, request, consent, approval or communication that either party desiresor is required to give to the other or any other person shall be in writing and either served personally or sent by prepaid certified mail, first class, and shall be addressed to the other party at the address set forth under its name on the signature page of this Sublease. Either party may change its address by notifying the other party of the change of address in accordance with this Paragraph. Notice shall be deemed effective upon receipt if personally delivered or seventy-two (72) hours from the date of mailing if mailed as provided in this Paragraph. 21. Siens. Tenant shall not place any sign upon the Premises, the building or any improvements or the real property of which the Premises are a part without Landlord's prior written consent. • 22. Recording/OuitclaimDeed. This Sublease shall not be recorded without Landlord's prior written consent. Tenant shall execute and deliver to Landlord on the expiration or termination of this Sublease, immediately on Landlord's request, a quitclaim deed tothe Premises,, in recordable form, designating Landlord and City as transferee. 23. Holdine Over. If Tenant, with Landlord's consent, remains in possession of the Premises or any part thereof after expiration of the Term of this Sublease, such occupancy shall be a tenancy from month to month upon all of the other provisions of this Sublease pertaining to the obligations of Tenant but all options and rights of first refusal, if any, granted under the terms of this Sublease shall be deemed terminated and be ofno further effect during said month to month tenancy. 24. Landlord's: Right of Entry, Landlord and Landlord's agents shall have the right to enter the Premises at reasonable trines for the purpose of inspecting the same, showing the Premises to prospective purchasers, lenders or tenants and making such alterations, repairs, improvements, or additions to- the Premises or the Building as Landlord may deem necessary or desirble. Landlord may at any time place on or about the Premises any ordinary "for sale" signs and L ttdlord may at any time during the last one hundred and eighty (180) days of the Term of the Sublease place on or about the Premises "For Lease' signs. 25. Attorney's Fees. If either partybrings an action to enforce the terms of this Sublease or declare rights hereunder, the prevailingpartyin such action, on trial or appeal, shall be entitled to his reasonable attorney's fees to be paid by the losing party as fixed by the court. Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 15 Attachment 4 26. Rules and Regulations. Tenant agrees that it will abide by, keep and observe all reasonable rules and regulations which Landlordmay make from time to time for the management safety, care and cleanliness of the Premises, the Building and the surrounding areas as well as for the convenience of other occupants and tenants of the Building. The violation of any such rules and regulations shall be deemed a material breach of this Sublease by Tenant. 27. Seca rityMeasures. Tenant hereby aeknowledgesthat the ,rent payable .toLandlord hereunder does not include the cost of guard service or other security measures and that Landlord shall have no obligation whatsoever to provide the same. Tenant assumes all responsibility for the protection of Tenant, it's agents and invitees fromacts of third, parties. 28. y' asements. Landlord reserves the right from time to time to grant such easements, rights and dedications that Landlord may deem necessary or desirable and to cause the recordation of parcel maps and restrictions so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by Tenant. Tenant shall sign any of the aforementioned documents immediately upon request of Landlord and failure to do so shall constitute a material breach of this Sublease. 29. Landlord's Right to Effect Performance. If Tenant at any time fails to perform any covenant, term or condition of this Sublease, Landlord may immediately, or at any time thereafter without notice, perform the same for the account of Tenant, and any monies paid by Landlord' on account thereof shall be deemed to be additional rent due under this Sublease, shall be immediately due and payable to Landlord and shall bear interest at the maximum rate allowable by law until paid. by Tenant to Landlord. 30. Commencement of Action. 30.1 Any claim, demand, right or defense of any kind by Tenant, which is based upon or arises in any connection with this Sublease, or the negotiations prior to its execution, shall be barred unless Tenant commences an action thereon, or interposes in a legal proceeding a defense by reason thereof, within six (6) months after the date of the: inaction or omission or the date of the occurrence of the event or of the action to which the claim, demand, right or defense relates, whichever applies. 30-2 Mediation. Arbitration and Attorney's Fees. 30.2.1 Mediation of Disputes. Except as otherwise provided herein, the parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, beforeresorting to arbitration. Mediation fees, if any, shall be divided equally among the parties involved. If,, for any dispute or claim to which this paragraph applies, any party commences arbitration without first attempting to resolve the matter through mediation; or refuses. to mediate after a request has been made, then that party shall not be entitled to recover attorney's Sublease -BOYS' AND GIRLS'CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY.BRANCH 16 Attachment 4 fees, even if they would otherwise be available to that party in any such arbitration. 30.2.2 Arbitration of Disputes. Except as otherwise provided herein, any action to enforce or interpret this instrument or to resolve disputesbetween the parties regarding this instrument, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. Arbitration shall be conducted at San Diego, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. The. prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. "NOTICE: BYINITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MA FURS 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 TN 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 THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAYBE 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 MA 1'1 RS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION. INITIALS; 30.2.3 In the event of a dispute arising out of this Agreement, or the; performance thereof it, the prevailing party shall recover all of his legal fees and expenses; whether or not the dispute is submitted to arbitration. 31. Miscellaneous. 31.1 Time of Essence. Time is of the essence to this Sublease. 31.2 Additional Rent. My monetary obligation of Tenant to Landlord under the terms of this Sublease shall be deemed to be rent. 31.3 Amendments. This Sublease contains all agreements of the parties with Sublease -BOYS'. AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 17 Attachment 4 respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Sublease may be modified only in a writing signed by all parties hereto. 31.4 Severability. The invalidity of any provision ofthis Sublease as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof and it shall remain in full force and effect. 31.5 Waiver. No delay or omission in the exercise of any right or remedy of Landlord on any default by Tenant shall impair such right or remedy or be construedas a waiver. No act or conduct of Landlord, including, without limitation, the, acceptance of the keys to the Premises, shall constitute an acceptance of the surrender of the Premisesby Tenant before the expiration of the Term. Only 'a written notice from Landlord to Tenant shall constitute an acceptance of the surrender of the Premises and accomplish a termination of the Sublease. Landlord's consent to or approval of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent act by Tenant. Any waiver by Landlord of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Sublease. 31.6 Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 31.7 Covenants and Conditions. Each provision ofthis Sublease to be performed by Tenant shall be deemed both a covenant and a condition. 31.8 Governing Law. This Sublease shall be governed by the laws of the State of California. 31.9 Heirs. Successors and Assigns. Subject to the provisions restricting assignment or subletting by Tenant, or other provisions of this Sublease, this Sublease shall be binding on the parties, their respective heirs, personal representatives, successors and assigns. 31.10 Authority. Each individual executing this Sublease on behalf of such entity represents and warrants that he or she is duly autho d to execute and deliver this Sublease on behalf of that entity. If Landlord requests, Tenant sh 11 provide Landlord with evidence of such authority satisfactory to Landlord. 31.11 Written Notice or Consent of Parties. Whenever a notice, consent or approval of either party is required, the notice, consent or approval shall be in writing. 31.12 Captions. °The captions of this Sublease shall have no effect on its interpretation. Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER,SCHOOL NATIONAL CITY BRANCH 18 Attachment 4 31.13 Construction.. As used in this Sublease, the masculine, feminine or neuter gender and the singular or plural numbers shall each be deemed to include the other whenever the context so indicates. This Subleaseshall be construed in accordance with its fair meaning, the captions being for the convenienceof the parties only and not intended to describe or define the provisions in the portions of the Sublease to which they pertain. The terms of this Sublease have been freely negotiated by the parties and this Sublease shall not be construed against the drafter. Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 19 Address: _ 7e/ Na iarial 7 Alvc/ lira 7.61ed c z ( 9/9c5 Attachment 4 31.14 Joint and Several Obligations. If more than one (1) person is Tenant, the obligations imposed on Tenant are joint and several. LANDLORD: ND GIRLS CLUB By: Addre P.O. Box 178569 San Deigo, CA 92177 TENANT: INTEGRITY CHARTER SCHOOL cPa n Piz°s;Uek--1 1 or' By: t� / o`2LtsfeJ F�l D� reed r' \\WBSBSYCIient Files1LBBneal estate \Boys and Girls Clubnategsity Charter School -National. Ciry-Payae Besaes1Soblense-1nanyily-aavised5-5-14.wpd • Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 20 EXHIBIT "A" Legal Description of the Property Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 21 Attachment 4 EXHIBIT"B" (Copy of the Club's Lease with the City of Poway) Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 22 Attachment 4 • Attachment4 EXHIBIT"C" Legal Description of the Premises Club hereby leases to Integrity that portion of the Club's Facility as follows: Both Integrity and Club using best efforts to cooperate with the other regarding said shared use. Integrity shall have no right of possession of the remaining portions of the real property or improvements located thereon. Sublease -BOYS' AND GIRLS' CLUBS AND INTEGRITY CHARTER SCHOOL NATIONAL CITY BRANCH 23 Attachment 4 EXHIBIT "A" That portion of Blocks 3 and 4 per Map No, 552, Records of San Diego County, California, November 4, 1914, together with closed and vacated to public use portions of 14th Street, 15U' Street and C Avenue, described as follows; COMMENCING at the Southeast corner of said Block 4; Thence along the Southerly prolongation of the Easterly line of said Block 4, South 17°47'04" East, 4.24 feet to the POINT OF BEGINNING; 1. Thence leaving said line, South 71° 56' 15" West, 249.51 feet; 2. Thence South 28° 47'57" West, 16.17 feet; 3. Thence North 79° 32' 30" West, 9.76 feet; 4. Thence North 88° 10' 29" West, 10.10 feet; 5. Thence South 81 ° 39' 55" West, 10.18 feet; 6. Thence South 68° 32' 00" West, 48.87 feet; 7. Thence North 71 ° 20' 52" West, 29.69 feet; 8. Thence North 67° 43' 17" West, 19.80 feet; 9. Thence North 61° 15' 54" West, 39.52 feet; 10. Thence North 30° 13' 16" West, 15,13 feet; 11. Thence North 23° 22' 20" East 37.88 feet; 12. Thence North 37° 26' 19" East, 69.13 feet; 13. Thence North 43° 43' 42" East, 79.18feet; 14. Thence North 51° 18' 19"'East,19.29 feet; 15. Thence North 60° 34' 10" East, 128.19 feet; 16. Thence North 16° 40' 03" West, 41.65 feet; 17., Thence North 34 52' 24" East, 27.92 feet; 18. Thence North 71 ° 34' 26" East, 89.80 feet to the Northerly prolongation of Easterly line of said Block 4; 19, Thence along said line, South 17° 47' 04" East, 266.11 feet to the POINT OF BEGINNING. Said land contains.75, 760 S.F„ more,or less. This legal, description has been prepared by me, or under my direction, in conformance with the Pofessional and urveyors Act. Signature: Jon R. Berggren,L.S. 6000 Lic nse Expires 12/31/2010 Date: January 4, 2009 Attachment 4 LINE TABLE LINE BEARING DISTANCE LINE BEARING DISTANCE L1 S7156'15"W 249.51' L11 62322'20'4! 37.88' L2 S28'47'57"W 16.17' " L12 N37'26'191 69.13' L3 S79'32'30"E 9.76' L13 , N43'43'42"E 79.18' L4 S88'10'29'E 10.10' L14 N51'18'19"E 19.28' L5 N81'39'55"E 10.18' 115 960'34'10"W 128.19' L6 N68'32'00"E 48.87' Lib S16'40'03"E '41.65' L7 S71'20'521 29.69' L17 534'52'24"4! 27.92' L8 N67'43'17"W 19.80' L18 S7134'26"W 89,80' L9 N6115'54"W 39.52' L19 S17'47'041 266.11' L10 S30'I3'16'E 15.13' -- 143 . ,� C.. ,S-'/-- 1 V� .-- \ �/ BLOCK 4 MAP 552\\ �/ 1X `''� POINT OF COMMCEMENT 01 CURRENT SOUTHEAST 4 LEASE CORNER OF ( P.y ` AREA ' BLOCK 4 .4,24�l ' BLOCK' 3 _ 1` \ v� 2 i. ��' �r ~ L, POINT B GINNINOF G L C9 1 _ ' r-- L_8_— �L5L3� r � 5�R r 15 NpGP'� r r NEW LEASE AREA = 75,670 L10 r r as L6 r.� Q YG SF SCALE 1"= 100' IN ASSOCIATION WITH: esdialsmormr, TETRA TECH ,r- BEIZGGREN & ASSOCIATES LAND SURVEYING AND RIGHT OF y'AY MAPPING 6046 CORNERSTONE COURT WEST /116' SAN DIEGO, CALIFORNIA 92121 (858)824-0034 / (856).824-0036 Qyf se _ aW_ traLIM scWen," i� a ,�.,.. ▪ a • ro istaciia u. w . .[ itbw urom T. fag gYr:14.1M=. Exhibit C - All Program Areas except Youth Center Area which is outlined OMANI III, esettEle l: M. urn 13. rLoon tarui M. A2.1 i urr Attachment 4 FIRST AMENDMENT TO SUBLEASE THIS FIRST AMENDMENT TO SUBLEASE is made effective July 1, 2014 by and between the BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, a California nonprofit corporation (the "Club" or "Landlord") and INTEGRITY CHARTER SCHOOL ("Integrity" or "Tenant"). Recitals A. The Club entered into a Sublease with Integrity effective, July 1, 2014, subject to the written consent of the City of National City (the "City") to use a portion of the Premises located at 1430 "D" Avenue, National City, California (the "Property") as a public charter school. B. The Property is located on public parkland and therefore may or may not be used for certain purposes. C. Pursuant to requirements by the City and a Second Amendment of the Lease between the City and the Club, the Club and Integrity now agree to amend and modify the Sublease upon the terms and conditions set forth herein and as further provided in the amended Lease. NOW, THEREFORE, in consideration of the mutual promises and covenants of the respective parties hereto, it is mutually agreed as follows: 1. Section 1. Section 1 of the Sublease dated July 1, 2014 shall be amended to read as follows: 1. Subleased Premises. Subject to tile'written approval of this Sublease by the City, the written consent heretd by the City and to the provisions of the Lease between the City and the Club, as amended from time to time, the Club hereby subleases to Integrity and Integrity subleases from the Club, upon all of the terms and conditions set forth in this Sublease, a portion of the Property including six (6) identified classrooms for kindergarten through second grade, use of the boys' and girls' bathrooms, use of the computer lab, use of the gymnasium and the school -age children's playground as shown on the attached Exhibit "C" incorporated herein by reference (the "Premises") as well as non-exclusive use of the common areas as described below. Integrity shall have no right of possession of any remaining portions of the real property or improvements located thereon. This Sublease subordinates to the applicable covenants and Attachment 4 conditions of the Lease between the City and the Club. In the event of conflict between the provisions ofthis Sublease and those of the Lease between the City and Club, the Lease, as amended from time to time, between theCity and the Club shall control. Portions of the Property are subject to shareduse by Integrity, the Club andother users, including but not limited to the gymnasium, computer lab, bathrooms and common access ways ("Common Areas") (collectively "Shared Use Space"). The specific hours of use of portions of the Premises are more particularly set forth in Section 4.5 below. For all additional or incidental use, if any, the parties shall use their best efforts to cooperate with the scheduling and shared use. 2. Section 2.2: Section 2.2 of the Sublease shall be amended to add the following: Any Renewal Term of this Sublease shall require the written consent of the City. 3. In all other regards, the Sublease dated July 1, 2014 shall continue in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Sublease to be executed as of the date specified above. THE CLUB: By: Danny Sherlock, President and CEO INTEGRITY Susie Fahey, Director CONSENTED TO THE CITY OF NATIONAL CITY By: (print name and title) Attachment 4 APPROVED AS TO FORM AND CONTENT By: Claudia Silva, City Attomey Q:V:HB'real estate\Boys' and Girls' ClubUntegrity Charter School -National City -Payne Brancg\Lease-First Amendment.doc RESOLUTION NO. 2014 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE THE SECOND AMENDMENT TO THE LEASE BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE BOYS AND GIRLS CLUB OF GREATER SAN DIEGO, INC., CONSENTING TO A SUBLEASE AGREEMENT BETWEEN THE BOYS AND GIRLS CLUB AND INTEGRITY CHARTER SCHOOL, AND A SUBLEASE BETWEEN THE BOYS AND GIRLS CLUB AND EPISCOPAL COMMUNITY SERVICES FOR THE CITY -OWNED LAND AND BUILDING LOCATED AT 1430 "D" AVENUE WHEREAS, on August 16, 2011, the City Council adopted Resolution No. 2011- 183, approving a Lease with the Boys and Girls Clubs of Greater San Diego, Inc., ("Boys and Girls Club"); and WHEREAS, pursuant to this Lease, Boys and Girls Club is leasing from the City certain real property, including a building and other improvements, located at 1430 "D" Avenue (the "Property") for the purpose of maintaining a clubhouse thereon, and for promoting the physical, mental, and moral well-being of the boys and girls of the City of National City, and for boys and girls in the immediate vicinity; and WHEREAS, Section Six of the Lease requires that any subletting requires the City's prior written consent. The Boys and Girls Club desires to sublease to two new subtenants, Integrity Charter School ("Integrity") and Episcopal Community Services ("ECS"). Both Integrity and ECS would share the land and building located at 1430 "D" Avenue; and WHEREAS, Boys and Girls Club and the City seek to enter this Second Amendment to the Lease to allow for subletting; and WHEREAS, Integrity and the City are now desirous of entering into a sublease for the Property for the purpose of allowing Integrity to use six classrooms, bathrooms, computer labs, and the gymnasium for kindergarten through second grade; and WHEREAS, the term of the Integrity sublease will be for two years with a monthly payment to the Boys and Girls Club of $5,000. In addition, Integrity will pay to the Boys & Girls Club $30 for every non after -school program eligible student; and WHEREAS, ECS and the City are now desirous of entering into a sublease for the Property for the purpose of allowing ECS to use the Youth Center, Youth Office, storage, restrooms, and common areas to operate a Head State Program, which is a comprehensive child development program serving children from birth to five years old; and WHEREAS, the term of the ECS sublease will be for five years with a monthly payment to the Boys and Girls Club of $3,534.30. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of National City hereby authorizes the Mayor to execute the Second Amendment to the Lease by and between the City of National City and the Boys and Girls Clubs of Greater San Diego, Inc., allowing subletting of the land and building located at 1430 "D" Avenue. BE IT FURTHER RESOLVED, that the City Council of the City of National City hereby authorizes the Mayor to execute the Sublease with Integrity Charter School for the land and building located at 1430 "D" Avenue; and Resolution No. 2014 —112 Page Two BE IT FURTHER RESOLVED, that the City Council of the City of National City hereby authorizes the Mayor to execute the Sublease with Integrity Charter School for the land and building located at 1430 "D" Avenue; and BE IT FURTHER RESOLVED, that the City Council of the City of National City hereby authorizes the Mayor to execute a sublease with Episcopal Community Services for the land and building located at 1430 "D" Avenue. PASSED and ADOPTED this 5th day of August, 2014. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney