HomeMy WebLinkAbout2003 CON Operation Samahan USIAA - LeaseCity of National City
Office of the City Clerk
1243 National City Boulevard, National City, California 91950-4397
Michael R. Dalla, CMC - City Clerk
(619) 336-4228 Fax: (619) 336-4229
April 22, 2003
Mr. Robert Coons
USIAA
PO Box 564
National City CA 91951
Dear Mr. Coons,
On April 15, 2003, Resolution No. 2003-45 was passed and adopted by the
City Council of the City of National City, authorizing ground sublease
between the City of National city and Operation Samahan and United
Institute of Amateur Athletics (USIAA) for the airspace located near the
interchange of Highway 805, Palm Avenue and Division Street..
We are forwarding a certified copy of the above Resolution and a fully
executed original agreement.
Sincerely,
Michael R. Dalla, CMC
City Clerk
MRD/mla
Enclosure
cc: Engineering
File No. C2003-12
Recycled Paper
City of National City
Office of the City Clerk
1243 National City Boulevard, National City, California 91950-4397
Michael R. Dalla, CMC - City Clerk
(619) 336-4228 Fax: (619) 336-4229
April 22, 2003
Mr. Joel San Juan
Samahan Health Clinic
PO Box 564
National City CA 91951
Dear Mr. San Juan,
On April 15, 2003, Resolution No. 2003-45 was passed and adopted by the
City Council of the City of National City, authorizing ground sublease
between the City of National city and Operation Samahan and United
Institute of Amateur Athletics (USIAA) for the airspace located near the
interchange of Highway 805, Palm Avenue and Division Street..
We are forwarding a certified copy of the above Resolution and a fully
executed original agreement.
Michael R. Dalla, CMC
City Clerk
MRD/mla
Enclosure
cc: Engineering
File No, C2003-12
Recycled Paper
City of National City, California
COUNCIL AGENDA STATEMENT
c-.00 3- I
MEETING DATE
April 15, 2003
AGENDA ITEM NO.
ir ITEM TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING
THE MAYOR TO EXECUTE AN AIRSPACE GROUND SUBLEASE WITH OPERATION SAMAHAN AND UNITED
STATES INSTITUTE OF AMATEUR ATHLETICS (USIAA) FOR THE AIRSPACE LOCATED NEAR THE
INTERCHANGE OF HIGHWAY 805, PALM AVENUE AND DIVISION STREET
PREPARED BY DEPARTMENT
Rhonda Darling
336-4380
EXPLANATION
Public Works/Engineering
On November 6, 2001, Council authorized the Mayor to sign an airspace ground lease with the State of
California, Department of Transportation for the property at Division Street and Palm Avenue. The City
will sublease the airspace for community -benefit and social service purposes, in accordance with State
Senate Bill 160, to a subtenant comprised of two entities, Operation Samahan and United States Institute
of Amateur Athletics (USIAA).
Since the approval of the airspace lease, City staff has been involved in on -going discussions with
Caltrans and the subtenant regarding the language of the Sublease. All responsible divisions of Caltrans
and Board members from both subtenant entities have now reviewed the Sublease and agree with the
terms. We are now presenting the proposed Sublease provisions to City Council to decide on whether or
not to accept the Sublease as it has been written. After the City executes the Sublease, the City will
work with the subtenant in conjunction with Caltrans to address the Master Lease's requirements
regarding construction of improvements/alterations to the premises.
CEnvironmental Review
N/A
Financial Statement There is no cost associated with the sublease rovesi ns.
The ten-year cost of the Master Lease is $5,120 which will be Approveu �y:
Finance Director
paid from Account Number 626-4 2-223-268. There are two ten-year renewal terms allowed byhe
lease, but we are only requestin f nds for the if �tial ten-year lease at this time. The lease require . at
any rent charged to subtenant e C must rwarded to the State. Account No.
STAFF RECOMMENDATION
Recommend City Coun
yor
BOARD / COMMISSION RECOMMENDATION
N/A
ublease.
ATTACHMENTS ( Listed Below )
1. Proposed Sublease
Resolution No. 2003-45
A-200 (9/99)
RESOLUTION NO. 2003 — 45
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE AN
AIRSPACE GROUND SUBLEASE BETWEEN
THE CITY OF NATIONAL CITY AND OPERATION SAMAHAN
AND UNITED INSTITUTE OF AMATEUR ATHLETICS (USIAA),
FOR THE AIRSPACE LOCATED NEAR THE INTERCHANGE
OF HIGHWAY 805, PALM AVENUE AND DIVISION STREET
WHEREAS, on November 6, 2001, Resolution No. 2001-164 was
adopted by the City Council authorizing the Mayor to sign an airspace ground lease
with the State of California, Department of Transportation for the property at
Division Street and Palm Avenue; and
WHEREAS, the City desires to sublease the airspace for community -
benefit and social service purposes, in accordance with State Senate Bill 160, to a
subtenant comprised of two entities, Operation Samahan and United States
Institute of Amateur Athletics.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of National City hereby authorizes the Mayor to execute an airspace ground
sublease with Operation Samahan and Untied States Institute of Amateur Athletics
for the airspace located near the interchange of Highway 805, Palm Avenue and
Division Street. Said sublease is on file in the office of the City Clerk.
PASSED AND ADOPTED this 15th day of April, 2003.
t
Nick. Inzunza, Mayor
ATTEST:
Mic
ael Dalla, Cit /Clerk
APPROVED AS TO FORM:
George H. iser, III
City Attorney
Passed and adopted by the Council of the City of National City, California, on April 15, 2003, by
the following vote, to -wit:
Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
NICK INZUNZA
Mayor of the City of National City, California
ibfli i
Cilerk of the City National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2003-45 of the City of National City, California, passed and adopted by the
Council of said City on April 15, 2003.
City Clerk of the City of National City, California
By:
Deputy
STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION
AIRSPACE GROUND SUBLEASE
FOR COMMUNITY BENEFIT AND SOCIAL SERVICE PURPOSES
SUBLEASE AREA No. 11-SDX805-12
THIS SUBLEASE is written pursuant to legislative act by the State of California known as State Senate
Bill 160, also known as the State Budget Bill of 1999, items 14(a), 14(b) and 14(c), which state, (14a)
"The Department may lease the airspace under the interchange at Palm Avenue and Division Street in San
Diego County to any city, county, or other political subdivision, or any state agency, for community -
benefit and social service purposes. The Department may provide information to those entities regarding
the lease of that airspace for that use. The lease shall be for $1 per month. The lease amount may be paid in
advance of the term covered in order to reduce the administrative costs associated with the payment of the
monthly rental fee." 14(b) "This lease shall also provide for the cost of administering the lease. The
administrative fee shall not exceed $500 per year unless the department determines that a higher
administrative fcc is necessary." 14(c) "Upon request of the City of National City, the department may
renew the lease for the period requested by the city, but not exceed 10 years, and may, subsequent to that
renewal, agree to not more than two additional renewals of not more than 10 years each."
THIS SUBLEASE dated September 1, 2001 is by and between the CITY OF NATIONAL CITY,
hereinafter called "Tenant," and UNITED STATES INSTITUTE OF AMATEUR ATHLETICS (USIAA),
a non-profit corporation, and SAMAHAN HEALTH CLINIC, a non-profit organization, hereinafter called
"Subtenant."
WITNESSETII
For and in consideration of the rental and of the covenants and agreements hereinafter set forth to be kept
and performed by the Subtenant, Tenant hereby leases to Subtenant and Subtenant hereby leases from
Tenant the Premises herein described for the term, at the rental and subject to andupon all of the terms,
covenants and agreements hereinafter set forth.
ARTICLE 1.
TENANT:
SUBTENANT:
PREMISES:
SUMMARY OF SUBLEASE PROVISIONS
CITY OF NATIONAL CITY
UNITED STATES INSTITUTE OF AMATEUR ATHLETICS (USIAA) AND
SAMAHAN HEALTH CLINIC
Near the interchange of Highway 805, Palm Avenue and Division Street located in
National City and City of San Diego, County of San Diego, State of California,
known to Landlord as 11-SD-805-12 and more particularly described in Article 2 of
this Sublease
SUBLEASE TERM: Ten (10) years, commencing September 1, 2001 and expiring on August 31,
2011 (Article 3), plus two (2) additional ten-year (10-year) renewal options
beginning September 1, 2011 and ending August 31, 2031 if elected.
RENT: To be funded by the City of National City
USE: Community Benefit and Social Service Purposes.
LIABILITY INSURANCE: $5 Million (Article 8).
ADDRESS FOR NOTICES: (Article 19)
LEASE AREA No. 11-SDX805-12
To Landlord: DEPARTMENT OF TRANSPORTATION
DISTRICT 11 — RIGI-IT OF WAY, MS 54
PO Box 85406
San Diego, CA 92186-5406
To Tenant: CITY OF NATIONAL CITY, CITY MANAGER
1243 National City Boulevard
National City, CA 91950
To Subtenant: USIAA, ROBERT COONS
P.O. Box 564
National City, CA 91951
SAMAHAN HEALTH CLINIC, JOEL SAN JUAN
P.O. Box 564
National City, CA 91951
References in this Article 1 to the other Articles are for convenience and designate other Articles where
references to the particular item contained in the Summary of Sublease Provisions appear. Each reference
in this Sublease to the Summary of Sublease Provisions contained in this Article 1 shall be construed to
incorporate all of the terms provided under the Summary of Sublease Provisions. In the event of any
conflict between the Summary of Sublease Provisions and the balance of the Sublease, the latter shall
control.
ARTICLE 2. PREMISES
Tenant hereby subleases to Subtenant, and Subtenant hereby subleases from Tenant, for the term, and upon
the covenants and conditions hereinafter set forth, those certain premises known as Airspace Sublease
Area No.11-SDX805-12, situated in the City of National City and City of San Diego, County of San
Diego, said land or interest therein being shown on the map or plat marked "Exhibit A," attached, hereto
and by this reference made a part hereof, and more particularly described as follows:"
All that certain real property situated, lying, and being in the City of San Diego and in the "City of
National City, County of San Diego, State of California, described as:
THAT portion of lot 70, of Ex Mission Lands of San Diego (commonly called Horton's purchase),
according to map thereof No. 283, filed in the San Diego County recorder's Office, on March 9, 1878,
conveyed to the State of California in a deed recorded on May 21, 1971, as File No. 105932 in said
Recorder's Office, TOGETHER WITH that portion of said Lot 70 conveyed to the State of California in
a Final Order of Condemnation recorded on May 16, 1972, 183419 in said recorder's Office,
TOGETHER WITH that portion of said Lot 70 conveyed to the State of California in a deed recorded on
December 31, 1969, as File No. 236282 in said Recorder's Office, TOGETHER WITH that portion of
said Lot 70 conveyed to the State of California in a deed recorded on November 13, 1969, as File No.
207832 in said Recorder's Office, TOGETHER WITH that portion of said Lot 70 conveyed to the State
of California in a deed recorded on October 6, 1970, as File No. 181572 in said Recorder's Office,
TOGETHER WITH Lot 3 and portions of Lots 1,2,4,5, and 31, according to map thereof No. 3153, filed
on November 4, 1954, in said County Recorder's Office, conveyed to the State of California in a Final
Order of Condemnation recorded April 26, 1972, as file No. 103745 in said Recorder's Office,
TOGETHER WITH a portion of Lots 1 and 2 of Millerton, according to map thereof No. 1608, filed on
November 7, 1913, in said County Recorder's Office, conveyed to the State of California in a deed
recorded on August 14, 1970, as File No. 144917 in said County Recorder's Office , All lying within the
following described area:
Page 2 of 23
LEASE AREA No. 11-SDX805-12
BEGINNING at the Northwesterly terminus of that course shown as "N.59°3 1 '47"W. 107.30 feet" in
Parcel-9 of Relinquishment No. 24006 to the City of National City, recorded on September 2, 1975 as File
No. 75-235593 in said County Recorder's Office;
Thence (1) along the Northeasterly line of said Parcel-9, from a tangent which bears S. 72°15'46"W.,
along a curve to the right, having a radius of 30.00 feet, through a central angle of 63°58'57", an arc
distance of 33.50 feet;
thence (2) leaving said curve and continuing along said Northeasterly line N.43°45' 17"W., 244 feet, to the
beginning of a tangent curve to the right, having a radius of 599 feet;
thence (3) continuing along said Northeasterly line, along said curve to the right, through a central angle of
10°57'28", an arc distance of 114.56 feet;
thence (4) leaving said Northeasterly line along the Northerly extension of said curve through a central
angle of 47°55'02", and an arc distance of 500.96 feet;
thence (5) N. 67°17'50" E., 54.00 feet;
thence (6) S.25°05'02" E., 463.03 feet
thence (7) S.33°56'57"E., 384.76 feet;
thence (8) S72°15'46"W., 121.48 feet to the POINT OF BEGINNING.
Containing 3.110 acres, more or less.
The bearings and distances used in the above description are on the California Coordinate System of 1927,
Zone 6. Multiply all distances shown by 0.9999942 to obtain ground level distances.
EXCEPTING THEREFROM all those portions of the above -described property occupied by the
supports and foundations of the existing structure.
ALSO EXCEPTING THEREFROM all that portion of said property above a horizontal plane
five (5) feet below the underside of the superstructure of the existing structure, which plane extends to a
line fifteen (15) feet, measured horizontally, beyond the outermost protrusion of the superstructure of said
existing structure, as shown on the diagram marked exhibit "B," attached hereto and by this reference
made a part hereof.
This Sublease is subject to (1) all easements, covenants, conditions, restrictions, reservations, rights of
way, liens/stop notices, encumbrances and other matters of record, (2) all matters discoverable by physical
inspection of the Premises or that would be discovered by an accurate survey of the Premises and (3) all
matters known to Subtenant or of which Subtenant has notice, constructive or otherwise including, without
limitations, those shown on Exhibit "A" attached hereto and made a part thereof.
ARTICLE 3. TERM
The term of this Sublease shall be for ten (10) years, commencing September 1, 2001 and expiring on
August 31, 2011. Subtenant may renew this Sublease for two (2) additional ten-year (10-year) terms.
Page 3 of 23
LEASE AREA No. 11-SDX805-12
Subtenant shall provide Tenant with written notice of its intent to renew the Sublease not later than thirty
(30) days before the expiration of the term or the expiration of the first renewal period, as applicable.
ARTICLE 4. USE
4.1 Specified Use
The premises shall be used and occupied by Subtenant only and exclusively for a community athletic club
and health clinic and for no other purpose whatsoever without obtaining the prior written consent of
Landlord, Tenant, and the concurrence of the Federal Highway Administration.
Subtenant agrees to be bound by all terms and conditions of the Airspace Ground Lease (hereinafter called
the "Master Lease") between Tenant and the State of California, Department of Transportation. In the
event of a conflict between this Sublease and the Master Lease, the Master Lease shall prevail.
4.2 Condition of Premises
Subtenant hereby accepts the Premises in their condition existing as of the date of the execution hereof,
subject to all existing and future applicable zoning, municipal, county, state and federal laws, ordinances
and regulations governing and regulating the use of the Premises, and accepts this Sublease subject thereto
and to all matters disclosed thereby and by any exhibits attached hereto. Subtenant acknowledges that
neither Tenant nor any agent of Tenant has made any representation or warranty with respect to the
condition of the Premises or the suitability thereof for the conduct of Subtenants business, nor has Tenant
agreed to undertake any modification, alteration or improvement to the Premises except as provided in this
Sublease.
(a) Except as may be otherwise expressly provided in this Sublease, Subtenant agrees to accept the
Premises in its presently existing condition "as is", and that the Tenant shall not be obligated to make any
improvements or modifications thereto except to the extent that may otherwise be expressly provided in
this Sublease.
(b) Subtenant represents and acknowledges that it has made a sufficient investigation of the conditions of
the Premises existing immediately prior to the execution of this Sublease (including investigation of the
surface, subsurface and groundwater for contamination and hazardous substances) and is satisfied that the
Premises will safely support the type of improvements to be maintained by Subtenant upon the Premises,
that the Premises are otherwise fully fit physically and lawfully for the uses required and permitted by this
Sublease and that Subtenant accepts all risks associated therewith.
(c) Subtenant acknowledges that (1) Tenant has informed Subtenant prior to commencement of the term of
this sublease that Tenant does not know nor has reasonable cause to believe that any release of hazardous
substance has come to be located on or beneath the premises; (2) Tenant has provided Subtenant access to
the premises for purposes of providing to Subtenant the opportunity to investigate, sample and analyze the
soil and groundwater on the premises for the presence of hazardous substances; (3) by signing this
Sublease, Subtenant represents to Tenant that, except as otherwise may be stated on Exhibit "C" attached
hereto and by this reference incorporated herein, Subtenant does not know nor has reasonable cause to
believe that any release of hazardous substance has come to be located on or beneath the Premises and (4)
with respect to any hazardous substance which Subtenant knows or has reasonable cause to believe will
come to be located on or beneath the Premises, Subtenant has listed the hazardous substance on attached
Exhibit "C" and agrees to promptly commence and complete the removal of or other appropriate remedial
action regarding the hazardous substance at no cost or expense to Landlord and Tenant and in full
compliance with all applicable laws, regulations, permits, approvals and authorizations. The phrase
""hazardous substance", as used herein, has the same meaning as that phrase has under Section 25359.7 of
the California Health and Safety Code.
Page 4 of 23
LEASE AREA No. 11-SDX805-12
(d)Subtenant agrees that, except as otherwise expressly provided in this Sublease, Subtenant is solely
responsible without any cost or expense to the Tenant to take all actions necessary, off as well as on the
premises to improve and continuously use the Premises as required by this Sublease and in compliance
with all applicable laws and regulations.
4.3 Compliance with Law
Subtenant shall not use the premises or permit anything to be done in or about the premises which will in
any way conflict with any law, statute, zoning restriction, ordinance or governmental rule or regulation or
requirements of duly constituted public authorities now in force or which may hereafter be in force, or
with the requirements of the State Fire Marshal or other similar body now or hereafter constituted, relating
to or affecting the condition, use or occupancy of the premises. The judgment of any court of competent
jurisdiction or the admission of Subtenant in any action against Subtenant, whether Landlord or Tenant be
a party thereto or not, that Subtenant has violated any law, statute, ordinance or governmental rule,
regulation or requirement, shall he conclusive of that fact as between Tenant and Subtenant. Subtenant
shall not allow the premises to be used for any unlawful purpose, nor shall Subtenant cause, maintain or
permit any nuisance in, on or about the premises. Subtenant shall not commit or suffer to be committed
any waste in or upon the premises.
4.4 Petroleum Products
Subtenant shall not install facilities for, nor operate on the land above or below a highway or freeway, a
gasoline or petroleum supply station, nor shall the transportation or storage of gasoline or petroleum
products be permitted under the structures, except those products stored within an operable vehicle for
exclusive use by that vehicle.
4.5 Explosives and Flammable Materials
The premises shall not be used for the manufacture of flammable materials or explosives, or for any storage of
flammable materials, explosives or other materials or other purposes deemed by Landlord to be a potential fire
or other hazard to the transportation facility. The operation and maintenance of the leased premises shall be
subject to regulations of Landlord so as to protect against fire or other hazard impairing the use, safety and
appearance of the transportation facility. The occupancy and use of the area shall not be such as will permit
hazardous or unreasonably objectionable smoke, fumes, vapors or odors to rise above the surface of the
traveled way of the transportation facility.
4.6 Hazardous Materials
Subtenant shall at all times and in all respects comply with all federal, state and local laws, ordinances and
regulations, including, but not limited to, the Federal Water Pollution Control Act (33 U.S.C. section 1251, et
seq.), Resource Conservation and Recovery Act (42 U.S.C. section 6901, et seq.), Safe Drinking Water Act (42
U.S.C. section 300f, et seq.), Toxic Substances Control Act (15 U.S.C. section 2601, et seq.), Clean Air Act
(42 U.S.C. section 7401, et seq.), Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. section 9601, et seq.), Safe Drinking Water and Toxic Enforcement Act (California Health and
Safety Code section 25249.5, et seq.), other applicable provisions of the California Health and Safety Code
(section 25100, et seq., and section 39000, et seq.), California Water Code (section 13000, et seq.), and other
comparable state laws, regulations and local ordinances relating to industrial hygiene, environmental protection
or the use, analysis, generation, manufacture, storage, disposal or transportation of any oil, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic,
contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous
substances" under any such laws, ordinances or regulations (collectively "Hazardous Materials Laws"). As
used in the provisions of this Sublease, "hazardous materials" include any "hazardous substance" as that term is
defined in section 25316 of the California Health and Safety Code and any other material or substance listed or
regulated by any Hazardous Materials Law or posing a hazard to health or the environment. Except as
otherwise expressly permitted in this Sublease, Subtenant shall not use, create, store or allow any hazardous
materials on the premises. Fuel stored in a motor vehicle for the exclusive use in such vehicle is excepted.
Page 5 of 23
LEASE AREA No. 11-SDX805-12
In no case shall Subtenant cause or allow the deposit or disposal of any hazardous materials on the Premises.
Landlord, or its agents or contractors, and Tenant shall at all times have the right to go upon and inspect the
Premises and the operations thereon to assure compliance with the requirements herein stated. This inspection
may include taking samples of substances and materials present for testing, and/or the testing of soils or
underground tanks on the Premises.
In the event Subtenant breaches any of the provisions of this Section, this Sublease may be terminated
immediately by Tenant and be of nofurther force or effect. It is the intent of the parties hereto that Subtenant
shall be responsible for and bear the entire cost of removal and disposal of hazardous materials introduced to
the Premises during Subtenant's period of use and possession as owner, operator or Subtenant of the Premises.
Subtenant shall also he responsible for any clean up and decontamination on or off the Premises necessitated b3
the introduction of such hazardous materials on the Premises. Subtenant shall not be responsible for or bear the
cost of removal or disposal of hazardouterials introduced to Elie Premises by any party other than
Subtenant during any period prior to commencement of Subtenant's period of use and possession of the
Premises as owner, operator or Subtenant. Subtenant shall further hold Landlord and Tenant, and its officers
and employees, harmless from all responsibility, liability and claim for damages resulting from the presence or
use of hazardous materials on the Premises during Subtenant's period of use and possession of the Premises.
Landlord shall be responsible for removal of hazardous materials introduced to the leased premises from a
highway accident or other occurrence on the overhead freeway structure.
4.7 Signs
Subtenant shall not construct, erect, maintain or permit any sign, banner or flag upon the premises without
the prior written approval of Tenant. Subtenant shall not place, construct or maintain upon the premises
any advertising media that include moving or rotating parts, searchlights, flashing lights, loudspeakers,
phonographs or other similar visual or audio media. The term "sign" means any card, cloth, paper, metal,
painted or wooden sign of any character placed for any purpose on or to the ground or any tree, wall, bush,
rock, fence, building, structure, trailer or thing. Tenant may remove any unapproved sign, banner or flag
existing on the premises, and Subtenant shall be liable to and shall reimburse Tenant for the cost of such
removal plus interest from the date of completion of such removal.
4.8 Tenant's Rules and Regulations
Subtenant shall faithfully observe and comply with the rules and regulations that Tenant shall from time to
time promulgate for the protection of the transportation facility and the safety of the traveling public.
Tenant reserves the right from time to time to make reasonable modifications to said rules and regulations.
The additions and modifications to those rules and regulations shall be binding upon Subtenant upon
delivery of a copy of them to Subtenant.
4.9 Wrecked Vehicles
Subtenant shall not park or store wrecked or inoperable vehicles of any kind on the leased premises.
4.10 Vending
Subtenant shall not conduct or permit the vending or sale of any goods or services upon the premises
except as specifically permitted under Section 5.1.
4.11 Water Pollution Control
Subtenant shall fully conform to the requirements of the Department of Transportation statewide NPDES
Storm Water Permit, Order No. 99-06-DWQ, NPDES No. CAS000003 adopted by the State Water
Resources Control board on July 15, 1999. This permit regulates storm water and non -storm water
discharges associated with activities within Department of Transportation right of way. Subtenant shall
develop, implement, and maintain a Facilities Pollution Prevention Plan (FPPP), describing the pollution
prevention practices associated with activities on facilities located within the Department of Transportation
Page6of23
LEASE AREA No. 11-SDX805-12
right of way. Subtenant shall comply with the statewide NPDES Storm Water Permit by incorporating
storm water management into its operational activities. The FPPP will accomplish compliance by
implementing Best Management Practices (BMPs) described in the Department of Transportation
Statewide Storm Water Management Plan (SWMP). Copies of the Permit and the Department of
transportation SWMP may be obtained from the Department of Transportation, Material Operations
Branch, Publication Distribution Unit, 1900 Royal Oaks Drive, Sacramento, California, 98518, Telephone
(916) 445-3520.
Subtenant shall not allow the unauthorized discharge of storm water runoff into private or public storm
water drainage systems. Subtenant must comply with State and federal storm water pollution control
standards, including those of the State Water Resources Control Board, and the lawful requirements of
municipalities, counties, drainage districts, and other local agencies regarding discharges of storm water to
separate storm sewer systems or other watercourses under jurisdiction of the above agencies.
To minimize the discharge of pollutants, spilled or leaked fluids, and any other wastewater into the storm
water drainage system, Subtenant shall not allow the washing, fueling and repair of vehicles and
equipment on the site.
To minimize the discharge of pollutants from storm water resulting from contact with hazardous materials,
Subtenant shall not allow the storage or stockpile of hazardous materials on the site.
Landlord, or its agents or contractors, or Tenant, and its officers and employees, shall at all times have the
right to go upon and inspect the site and the operations therein to assure compliance with the requirements
herein stated. Inspection may include taking samples of substances and materials present for testing, and/or
the testing of storm water systems or watercourses on the site
ARTICLE 5. IMPROVEMENTS
5.1 Construction of Improvements and Alterations
Subtenant shall not place any improvements in, on, or upon the premises, nor shall Subtenant make any
alterations to said premises without the prior written consent and approval of Tenant, Landlord and the
Federal Highway Administration.
5.2 Standard of Construction
Subtenant agrees that any improvements or construction upon the premises shall: (a) be consistent with all
fire safety requirements, (b) be subject to the approval of Tenant, the State Fire Marshall and the
concurrence of the Federal Highway Administration, and (c) in every respect comply with the laws,
ordinances and regulations, federal, state, municipal or otherwise, that may govern construction of the
sublease. Subtenant shall not construct or place on the teased premises any improvements which impair
Landlord's ability to maintain, operate, use, repair or improve any part of the transportation facility
situated on the leased premises or on adjoining real property. Subtenant shall save Landlord and Tenant
harmless of and from any loss or damage caused by reason of the construction or use of said
improvements.
5.3 Encroachment Permit
Subtenant, prior to construction or alteration of any improvements on or of the leased premises, shall
obtain an executed Encroachment Permit from Landlord and Tenant.
Issuance by Landlord and Tenant of an Encroachment Permit shall be contingent upon Subtenant's
providing the following:
Page 7 of 23
LEASE AREA No. 11-SDX805-12
(a) Final construction plans and detailed specifications. All such plans and specifications
submitted by Subtenant to Tenant shall be subject to the review and approval of
Landlord and Tenant, the State Fire Marshall and the Federal Highway Administration.
(b) Evidence of coverage that assures Landlord and Tenant that sufficient monies will be
available to complete the proposed construction or alteration. The amount of coverage
shall be at least equal to the total estimated construction costs. Such coverage shall
take one of the following forms:
(1) Completion bond issued to Landlord and Tenant as obligee.
(2) Performance bond and labor and material bond or Performance bond containing
the provisions of the labor and Material bond supplied by Subtenant's contractor
or contractors, provided said bonds are issued jointly to Subtenant and Landlord
and Tenant as obligees.
(3) Any combination of the above.
All bonds shall be issued by a company qualified to do business in the State of California
and acceptable to Landlord and Tenant. All bonds be in a form acceptable to Landlord and
Tenant and shall ensure faithful and full observance and performance by Subtenant of all
terms, conditions, covenants and agreements relating to the construction of improvements
within the leased premises.
(c) Liability insurance as provided in Section 9.2.
(d) Fire insurance as provided in Section 9.3.
(e) A copy of a building permit issued by the appropriate local jurisdiction.
(f) A copy of Subtenant's contract with the general contractor actually performing
construction.
(g) Final landscaping and irrigation plans and detailed specifications including a
maintenance plan for litter removal, watering, fertilization and replacement of
landscaping.
(h) Evidence of compliance with the applicable provisions of all federal, state and
local environmental statutes, laws, regulations and ordinances.
(i) Subtenant agrees to diligently apply for and meet all requirements for issuance
of Encroachment Permit and Landlord and Tenant agree to not unreasonably
withhold issuance of said Encroachment Permit. Subtenant is obligated to
deliver to Landlord and Tenant the documents described in subdivisions (a)
through (h) of this section regardless of whether an Encroachment Permit may
have been issued inadvertently before these documents have been provided to
Landlord and Tenant.
5.4 Standard of Construction
Subtenant agrees that any improvements or construction upon the premises shall:
(a) be consistent with all fire safety requirements. (b) be subject to the approval of Tenant and the
concurrence of the Federal Highway Administration, and (c) in every respect comply with the laws,
ordinances and regulations, federal, state, municipal or otherwise, that may govern construction of the
same. Subtenant shall not construct or place on the leased premises any improvements which impair
Landlord's ability to maintain, operate, use, repair or improve any part of the transportation facility
situated on the leased premises or on adjoining real property. Subtenant shall save Landlord and Tenant
harmless of and from any loss or damage caused by reason of the construction of said improvements.
5.5 "As -Built" Plans
Within ninety (90) days after completion of construction of improvements or alterations, Subtenant shall
furnish Tenant and Landlord, at Subtenant's expense, one set of "As -Built" plans, according to a scale and
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size designated by Tenant, showing said improvements as constructed in detail, including the location of
underground and aboveground utility lines.
ARTICLE 6. OWNERSHIP OF IMPROVEMENTS AND PERSONAL PROPERTY
6.1 Ownership of Improvements During Term
All improvements constructed on the premises by Subtenant as permitted or required by this Sublease
shall, during the term of this Sublease, be and remain the property of Subtenant; provided, however, that
Subtenant's rights and powers with respect to the improvements are subject to the terms and limitations of
this sublease and Subtenant's interest in such improvements shall terminate upon the expiration or earlier
termination of this Sublease. Subtenant shall not remove any improvements from the premises nor waste,
destroy or modify any improvements on the premises, except as specifically permitted by this Sublease. At
the expiration or termination of this sublease, all improvements constructed on the premises by Subtenant
shall vest in Tenant. Subtenant shall dcliver said improvements to Tenant in good condition and repair,
reasonable wear and tear excepted, without compensation to Subtenant or third party, free and clear of all
claims to or against them by Subtenant or third party, and Subtenant shall defend and hold Landlord and
Tenant harmless from all liability arising from such claims or from the exercise by Tenant of its rights
under this section. In the event said improvements are not delivered to Tenant in good condition and
repair, reasonable wear and tear excepted, Tenant shall make the necessary maintenance and repairs and
Subtenant shall be liable to and shall reimburse Tenant for any such expenditures made, plus interest as
provided in Section 20.11 from the date of completion of work. Tenant and Subtenant covenant for
themselves and all persons claiming under or through them that the improvements are real property.
6.2 Removal of Personal Pro er and Ownershi at Termination
At the expiration or earlier termination of this sublease, Tenant may, at Tenant's sole election, require the
removal from the premises, at Subtenant's sole cost and expense, of all personal property (other than
fixtures), or of certain personal property (other than fixtures), as specified in the notice provided for below.
A demand to take effect at the normal expiration of the term shall be effected by notice given at least thirty
(30) days before the expiration date. A demand to take effect on any other termination of the term of this
Sublease shall be effectuated by notice given concurrently with notice of such termination or within ten
(10) days after such termination. Subtenant shall be liable to Tenant for costs incurred by Tenant in
effecting the removal of personal property which Subtenant has failed to remove after demand pursuant to
Section 7.2.
Subtenant may remove any personal property from time to time within forty-five (45) days of the
expiration of the term. Subtenant shall repair all damage (structural or otherwise) caused by any such
removal. Any personal property not removed by Subtenant within forty-five (45) days following
expiration of the term shall be deemed to be abandoned by Subtenant and shall, without compensation to
Subtenant, become the Tenant's property, free and clear of all claims to or against them by Subtenant or
any other person.
6.3 Removal of Im rovements at Termination
Upon the expiration or earlier termination of this sublease, Tenant may, in its sole discretion, and upon
written notice, require Subtenant to remove, at the sole cost and expense of Subtenant, and not later than
ninety (90) days after the expiration or earlier termination of this sublease, all structures, buildings and
improvements of any kind whatsoever placed or maintained on the premises, whether below, on or above
the ground by Subtenant or others, including, but not limited to, foundations, structures, buildings, utility
lines, switchboards, transformer vaults and all other service facilities constructed or installed upon the
premises; and Subtenant shall, upon the expiration or earlier termination of this Sublease, immediately
restore, and quit and peacefully surrender possession of the premises to Tenant in at least as good and
usable condition, acceptable to Tenant, as the same was in at the time of first occupation thereof by
Subtenant or others, ordinary wear and tear excepted, and shall, in any event, leave the surface of the
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ground in a level, graded condition, with no excavations, holes, hollows, hills, or humps. Should
Subtenant fail to so remove said structures, buildings and improvements and restore the premises, Tenant
may sell, remove or demolish the same, and in the event of said sale, removal or demolition, Subtenant
shall reimburse Tenant for any cost or expense thereof in excess of any consideration received by Tenant
as a result of such sale, removal or demolition. Upon the expiration or earlier termination of this Sublease,
should Tenant, in its sole discretion, determine not to require Subtenant to remove the improvements
placed on the premises, then such improvements shall remain on the premises and Subtenant shall continue
to maintain and repair said improvements until the premises are vacated.
ARTICLE 7. MAINTENANCE AND REPAIRS
7.1 Subtenant's Obligations
Subtenant, at its own cost and expense, shall maintain the leased premises, improvements and landscaping
thereon, including fences, and guardrails heretofore, or hereafter erected, in first class order, repair and.
condition and in compliance with all requirements of law. Subtenant shall also, at its own cost and
expense, install or provide for the installation of all required lighting on the leased premises and shall
maintain the lighting in first class order, repair and condition. Tenant and Subtenant recognize that
because of the length of the term of this Sublease, it may be necessary for Subtenant to perform certain
substantial maintenance, repair, rehabilitation or reconstruction (hereinafter collectively referred to as
"repair" or "repairs") of the improvements in order to ensure that the premises are kept in first-class order,
repair and condition. "First-class order, repair and condition", as used herein, shall mean the maintenance,
repair, .renovation or replacement of buildings, equipment, furniture, fixtures, landscaping and
appurtenances necessary to keep the premises in efficient and attractive condition, given the nature and age
of the improvements at any time during the term of this Sublease. Tenant and Subtenant do not intend by
the immediately preceding sentence that a property item is not first-class merely because of ordinary and
reasonable wear and tear that does not materially and substantially reduce the attractiveness and utility of
the item given the nature and age of the improvements at any time during the term of this Sublease.
Subtenant hereby expressly waives the right to make repairs at the expense of Tenant and the benefit of the
provisions of Sections 1941 and 1942 of the California Civil Code or any successor thereto.
Subtenant shall take all steps necessary to protect effectively the fences, guardrails, and the piers and
columns, if any, of the structure from damage incident to Subtenant's use of said premises and
improvements, all without expense to Tenant. Subtenant shall, at its own cost and expense, repair in
accordance with Tenant's standards any damage to any property owned by Landlord, including, but not
limited to, all fences, guardrails, piers and columns, caused by Subtenant, invitees or other third parties.
At Subtenant's request, Tenant will repair the damage to its property and Subtenant agrees to reimburse
Tenant promptly after demand for the amount Tenant has reasonably expended to complete the repair
work.
Subtenant shall designate in writing to Tenant a representative who shall be responsible for the day-to-day
operation and level of maintenance, cleanliness and general order.
7.2 Tenant's Rights
In the event Subtenant fails to perform Subtenant's obligations under this Article, Tenant shall give
Subtenant notice to do such acts as are reasonably required to so maintain the premises. If within thirty
(30) days after Tenant sends written notice to repair, Subtenant fails to do the work and diligently proceed,
in good faith to prosecute it to completion, Tenant shall have the right, but not the obligation, to do such
acts and expend such funds at the expense of Subtenant as are reasonably required to perform such work.
Any amount so expended by Tenant shall be paid by Subtenant promptly after demand plus interest from
the date of completion of such work to date of payment. Tenant shall have no liability to Subtenant for any
damage, inconvenience or interference with the use of the premises by Subtenant as a result of performing
any such work.
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ARTICLE 8. INSURANCE
8.1 Exemption of Tenant from Liability
This Sublease is made upon the express condition that Tenant and Landlord are to be free from all liability
and claims for damages by reason of any injury to any person or persons, including Subtenant, or property
of any kind whatsoever and to whomsoever belonging, including Subtenant, from any cause or causes
resulting from the operation or use of the premises by Subtenant, its agents, customers or business invitees.
Subtenant hereby covenants and agrees to indemnify and save harmless Tenant and Landlord from all
liability, Loss, cost and obligation on account of any such injuries or losses.
8.2 Insurance
During the term of the Sublease, Subtenant 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:
(1) Worker's compensation insurance meeting applicable statutory requirements and employer's
liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for
each accident.
(2) Comprehensive commercial general liability insurance with minimum limits of Five Million
Dollars ($5,000,000) as the combined single limit for each occurrence of bodily injury,
personal injury, personal injury and property damage. The policy shall provide blanket
contractual liability insurance for all written contracts, and shall include coverage for products
and completed operations liability, independent contractor's liability; coverage for property
damage from perils of explosion, collapse or damage to underground utilities, commonly
known as XCU coverage.
(3) Automobile liability insurance covering all owned, hired, and non -owned vehicles in use by
Subtenant, its employees and agents, with personal protection insurance and property
protection insurance to comply with the provisions of state law with minimum limits of Two
Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury
and property damage.
(4) At the start of and during the period of any construction, builders all-risk insurance, together
with an installation floater or equivalent property coverage covering materials, machinery and
supplies of any nature whatsoever which are to be used in or incidental to the construction of
improvements. Upon completion of the construction of improvements, Subtenant shall
substitute for the foregoing insurance policies of fire, extended coverage and vandalism and
malicious mischief insurance on the improvements. The amount of insurance at all times shall
be representative of the insurable values installed or constructed.
(5) All policies other than those for Worker's Compensation shall be written on an occurrence and
not on a claims -made basis.
(6) The coverage amounts set forth above may be met by a combination of underlying and
umbrella policies so long as in combination the Iimits equal or exceed those stated.
8.3 Named Insureds
All policies, except for the worker's compensation policy, shall name Landlord, Tenant and their officials,
boards, commissions, employees, agents and contractors, as their respective interests may appear, as
additional insureds (herein referred to as the "Additional Insureds"). Each policy which is to be endorsed
to add Additional Insureds hereunder, shall contain cross -liability wording, as follows:
"in the event of a claim being made hereunder by one insured for which another insured is or may
be liable, then this policy shall cover such insured against whom a claim is or may be in the same
manner as if separate policies had been issued to each insured hereunder."
8.4 Evidence of Insurance
Certificates of insurance of each insurance policy required to be obtained by Subtenant in compliance with
this Sublease, along with written evidence of payment of required premiums, shall be filed and maintained
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with Tenant prior to occupancy of the premises, and annually during the term of the Sublease. Subtenant
shall immediately advise Tenant of any claim or litigation that may result in liability to Tenant.
8.5 Cancellation of Policies of Insurance
All insurance policies maintained pursuant to this Sublease shall contain the following endorsement:
"At least thirty (30) days prior written notice shall be given to Tenant by the insurer of any
intention not to renew such policy or to cancel, replace or materially alter same, such notice to be
given by registered mail to the parties named in this paragraph of the Sublease."
8.6 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 line carriers on the State of California Insurance
Commissioner's approved list of companies qualified to do business in the State of California. All
insurance carriers and surplus line carriers shall he .rated A+ or better by A.M. Rest Company.
8.7 Contractors
Subtenant shall require that each and every one of its contractors and their subcontractors who perform
work on the Subleased Premises to carry, in full force and effect, workers' compensation, comprehensive
public liability and automobile liability insurance coverages of the type which Subtenant is required to
obtain under the terms of this paragraph with appropriate limits of insurance.
8.8 Review of Limits
Once during each calendar year during the term of this Sublease or any renewal thereof, Tenant may
review the insurance coverages to be carried by Subtenant. If Tenant determines that higher limits of
coverage are necessary to protect the interests of Tenant or the Additional Insureds, Subtenant shall be so
notified and shall obtain the additional limits of insurance, at its sole cost and expense.
8.9 Failure to Procure and Maintain Insurance
If Subtenant fails to procure or maintain the insurance required by this Article in full force and effect,
Tenant may take out insurance and pay the premiums thereon. The repayment of those premiums, plus
payment of interest from the date such insurance is obtained, shall be the sole obligation of Subtenant and
shall be deemed to be additional rental and payable as such on the next day upon which rent becomes due
hereunder. In addition, if Subtenant fails to procure or maintain the insurance required by this Article,
Subtenant shall cease and desist from operating any business on the premises and the improvements
erected thereon and shall prevent members of the public from gaining access to the premises during any
period in which such insurance policies are not in full force and effect.
8.10 Waiver of Subrogation
Tenant, and Subtenant each hereby waive any and all rights of recovery against the other, or against the
officers, employees, agents and representatives of the other, for loss of or damage to such waiving party or
its property or the property of others under its control to the extent that such loss or damage is insured
against under any insurance policy in force at the time of such loss or damages. The party obtaining the
policies of insurance required hereunder shall give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in the Sublease.
ARTICLE 9. DAMAGE OR DESTRUCTION
9.1 Duty to Repair or Restore
If during the term of this Sublease any building or improvement on, in or appurtenant to the land at the
commencement of the term or thereafter erected thereon shall be destroyed or damaged in whole or in part
by fire or other cause, or shall be declared unsafe or unfit for use or occupancy by a public entity with the
authority to make and enforce such declaration, Subtenant shall within ten (10) days of the occurrence of
such event, give to Tenant immediate notice thereof, and Subtenant shall within sixty (60) days commence,
and diligently pursue to completion, the repair, replacement or reconstruction of the same, at least to the
extent of the value and as nearly as possible to the character of the buildings and improvements existing
immediately prior to the occurrence of such event; and Tenant shall in no event be called upon to repair,
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replace or rebuild any such buildings or improvements. All buildings and improvements shall be repaired,
replaced or reconstructed in accordance with the standards and requirements contained in Article 6.
9.2 Relief for Substantial Loss of Area and Damage or Destruction During Final Years of Term
Subtenant is relieved of the obligation to, but may, repair, restore, or reconstruct improvements damaged
or destroyed during the final five (5) years of the term if (a) more than thirty-five percent (35%) of the
improvements constructed on the premises are damaged or destroyed; (b) the damage or destruction is
uninsured and is not required to be insured under any provision of this Sublease; and (c) Subtenant
complies with all the following conditions:
(1) Gives Tenant notice of damage or destruction promptly but not later than ten (10) days
after the event, detailing facts that qualify the casualty under this provision.
(2) Ts not in default under any provision or condition of this sublease.
(3) Continues to make all payments when due as required by the provisions of this Sublease,
provided that Tenant may, by notice given at any time atter Subtenant's notice of the
damage or destruction, elect to terminate the Sublease at a date stated in Tenant's notice
and to forgive all rent for the period following that date.
(4) Pay in full, or has paid in full, any outstanding indebtedness incurred by Subtenant and
secured by an encumbrance or encumbrances on the leasehold.
(5) Delivers possession of the premises to Tenant and quitclaims all right, title and interest
in the land and improvements promptly upon ceasing to do business on the premises.
(6) Causes to be discharged all liens/stop notices and encumbrances resulting from any act
or omission of Subtenant.
(7) Removes or deposits the cost of removing all fixtures and improvements if Tenant so
elects under the provisions of Article 7.
Subtenant shall also be relieved of the obligations to repair, restore or reconstruct improvements because
of an insured loss if Subtenant complies with all the above provisions and also assigns all net proceeds
from the insurance settlement to Tenant. "Net proceeds" shall mean the full amount of the insurance
settlement. Tenant and Subtenant hereby waive the provisions of Section 1932 (2) and 1933 (4) of the
California Civil Code and waive the provisions of any other statutes which relate to the termination of a
sublease when the leased property is destroyed. Tenant and Subtenant agree that such an event shall be
governed by the terms of this Sublease.
ARTICLE 10. RIGHT OF ENTRY
10.1 Inspection, Maintenance, Construction and Operation of Freeway Structures
Landlord, through its agents or representatives, Tenant, and other city, county, state and federal agencies,
through their agents or representatives, shall have full right and authority to enter in and upon the
premises and any building or improvements situated thereon at any and all reasonable times during the
term of this Sublease for the purpose of inspecting the same without interference or hindrance by
Subtenant, its agents or representatives.
Landlord and Tenant further reserves the right of entry for the purpose of inspecting the premises, or the
doing of any and all acts necessary or proper on said premises in connection with the protection,
maintenance, reconstruction, and operation of the freeway structures and its appurtenances; provided,
further, that Tenant reserve the further right, at its discretion, to immediate possession of the same in
case of any national or other emergency, or for the purpose of preventing sabotage, and for the protection
of said freeway structures, in which event the term of this Sublease shall be extended for a period equal
to the emergency occupancy by Tenant, and during said period Subtenant shall be relieved, to the degree
of interference, from the performance of conditions or covenants specified herein. Landlord and Tenant
further reserve the right of entry by any authorized officer, engineer, employee, contractor or agent of the
Tenant for the purpose of performing any maintenance activities upon the property which Subtenant has
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LEASE AREA No. 11-SDX805-12
failed to perform. All agreements which Subtenant enters into for the sublease or use of all or any part
of the leased premises shall contain a provision, approved by Tenant, which describes Landlord and
Tenant's right of entry as set forth in this Article.
10.2 Future Transportation Project
(a) Landlord's Right to Possession of Premises Subtenant understands and acknowledges that Landlord
may, during the Term of this Sublease, construct an "Approved and Funded Transportation Project",
which may require the temporary or permanent use of all or a portion of the premises. An "Approved
and Funded Transportation Project" is defined as a proposed transportation facility to be constructed by
Landlord where the funds necessary to construct the facility are available to Landlord (regardless of the
source of the funds) and where the transportation facility can reasonably be expected to be constructed
within a reasonable period of time following termination of this Sublease as provided in this Section
12.2.
In the event Landlord determines that the premises or any portion thereof will be affected by an
"Approved and Funded Transportation Project", Tenant shall immediately notify Subtenant of
Landlord's intent to take possession of all or a portion of the premises and shall provide Subtenant with
at least one hundred eighty (180) days written notice within which to vacate the required area. Tenant's
notice to Subtenant shall indicate the area of the premises to be taken. If possession is to be a temporary
use of all or part of the premises, Tenant shall additionally state in such notice to Subtenant Tenant's
reasonable estimate of the period of time of such temporary use by Landlord. Upon the date Landlord is
entitled to possession of the premises, or portion thereof, Subtenant shall peaceably surrender possession
of the premises, or portion thereof, and comply with the restrictions as stated in the notice. The failure
of Subtenant to vacate the required area of the premises shall constitute a material default and breach of
this Sublease entitling Tenant to exercise its rights and remedies.
(b) Subtenant's Sole Rights; Subtenant's Waiver Tenant's taking of possession of the premises under
Section 12.2 does not constitute a taking or damaging entitling Subtenant to compensation under Article
13. Subtenant expressly agrees to hold Tenant harmless from any and all liability for, and expressly
waives any right it may have to recover against Tenant, damages to the Premises, any improvements
constructed on the premises or improvements thereon, and damages to any other property, project or
operations including any claim for loss of business goodwill or resulting from Subtenant's inability to
use or possess all or any portion of the premises as a result of an "Approved and Funded Transportation
Project". In addition, Subtenant expressly recognizes that it is not entitled to receive benefits under the
federal or state Uniform Relocation Assistance Act (United States Code, Section 7260, et seq.) as a
result of Landlord's use or possession of any portion of the premises for an "Approved and Funded
Transportation Project". Landlord agrees to instruct its authorized representatives to minimize the effect
of any required construction on Subtenant's use of the premises, both in the construction phase and in the
permanent effect on the premises in connection with an "Approved and Funded Transportation Project"
In furtherance of the objectives of Section 12.2, Subtenant acknowledges Landlord's power of eminent
domain and Subtenant hereby waives all objections that Subtenant may have to Landlord's right to take
all or part of the premises as provided in Section 12.2.
10.3 Retrofitting of Freeway Structures
Subtenant understands and agrees that Landlord may be required to perform retrofit work on all or a part
of the freeway structures which are situated on and above the premises. Tenant shall have the right to
impose such restrictions on Subtenant's right to enter, occupy, and use the premises and to construct
improvements thereon as Landlord deems are necessary to enable it to complete construction of all
freeway structural retrofit work without interference from Subtenant.
In the event Landlord determines that it needs to obtain possession of all or a portion of the premises, or
needs to place restrictions on Subtenant's use of the premises, Tenant shall, at least thirty (30) days prior
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to the effective date of the commencement of such possession or restrictions notify Subtenant in writing
describing the extent of the possession or restrictions and the effective date of their commencement.
Upon the effective date of said notice, Subtenant shall peaceably surrender possession of the premises and
comply with the restrictions as stated therein. Subtenant expressly agrees to hold Tenant harmless from
any and all liability for, and expressly waives any right it may have to recover against Tenant, damages to
the premises, any improvements constructed on the premises, and waives its right to use or possess any
portion of the premises or improvements thereon, and damages to any other property, project or operation
caused by Tenant's possession, imposition of restrictions or Subtenant's inability to use or possess all or
any portion of the premises. In addition, Subtenant expressly recognizes that it is not entitled to receive
benefits under the federal or state Uniform Relocation Assistance Acts (United States Code, title 42,
Section 4601, et seq.; California Government Code, Section 7260, et seq.) as a result of Landlord's use or
possession of any portion of the premises.
Suhtennt ,;hall conduct its operation on the premises in such manner so as not to interfere with
Landlord's or its contractor's performance of any required construction in connection with an "Approved
and Funded Transportation Project", on or above the premises. Subtenant acknowledges the performance
of any required construction may cause damage to paving and other improvements constructed by
Subtenant on the premises. Subtenant expressly agrees to hold Tenant harmless from all such damage to
its improvements, except that at the conclusion of construction, Tenant shall restore the premises to their
pre-existing condition at no cost to Subtenant. Subtenant shall conduct its operations on the premises in
such a manner so as not to interfere with Landlord's or its contractor's performance of any structural
retrofit work done on or above the premises. Subtenant acknowledges that the performance of the
structural retrofit work may cause damage to paving or other improvements constructed by Subtenant on
the premises. Subtenant expressly agrees to hold Tenant harmless from all such damage to its
improvements, except that at the conclusion of the retrofit work, Tenant shall restore the premises to their
preexisting condition at no cost to Subtenant.
ARTICLE 11. CONDEMNATION BY PUBLIC ENTITIES OTHER THAN TENANT
11.1 Definitions
(a) "Condemnation" means (1) the exercise of the power of eminent domain, whether by
legal proceedings or otherwise, by a public entity having that power, that is, a
condemnor, and (2) a voluntary sale or transfer to any condemnor, either under the
threat of condemnation or while legal proceedings in condemnation are pending.
(b) "Award" means all compensation, sums, or anything of value awarded, paid or received
upon a total or partial condemnation of the leased premises.
(c) "Substantial taking" means a taking of a portion of the leased premises by
condemnation which, assuming a reasonable amount of reconstruction on the
remainder, substantially impairs Subtenant's ability to use the remainder for the
purposes permitted under this Sublease.
11.2 Termination of Sublease as to Part Condemned
In the event the whole or any part of the premises is taken by condemnation by a public entity, other than
Tenant, in the lawful exercise of its power of eminent domain, this Sublease shall cease as to the whole or
the part condemned upon the date possession of the whole or that part is taken by the public entity.
11.3 Partial Taking
If a part of the leased premises is taken by condemnation but there is no substantial taking of the premises,
Tenant shall continue to be bound by the terms, covenants, and conditions of this Sublease.
If the part taken by condemnation constitutes a substantial taking of the leased premises, Tenant may elect
to:
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(a) Terminate this Sublease and be absolved of obligations hereunder which have not
accrued at the date possession is taken by the public entity; or
(b) Continue to occupy the remainder of the premises and remain bound by the terms,
covenants and conditions of this Sublease.
Subtenant shall give notice in writing of its election to terminate this Sublease hereunder within thirty (30)
days of the date possession of the part is taken by the public entity. If Subtenant fails to give Tenant its
written notice of termination within the time specified, this Sublease shall remain in full force and effect.
If it continues to occupy the remainder, Subtenant, whether or not the award upon the taking by
condemnation is sufficient for the purpose, shall, at its expense, within a reasonable period of time,
commence and complete restoration of the remainder of the leased premises as nearly as possible to its
value, condition and character immediately prior to such taking; provided, however, that in the case of a
taking for temporary use, Subtenant shall not be required to effect restoration until such taking is
teiiuinated. Subtenant shall submit to 'Tenant its plans fur the restoration of the remainder within ninety
(90) days of the date possession of the part is taken by the public entity.
ARTICLE 12. UTILITIES
Subtenant shall pay when due, and shall hold Tenant harmless from any liability for, all charges for water,
gas, heat, light, power, telephone, sewage, air conditioning and ventilating, scavenger, janitorial and
landscaping services and all other materials and utilities supplied to the premises. Tenant shall not be
liable in damages or otherwise for any failure or interruption of any utility service furnished to the
premises, and no such failure or interruption shall entitle Subtenant to terminate this Sublease.
ARTICLE 13. LIEN/STOP NOTICE
13.1 Exemption of Tenant from Liability
Subtenant shall at all times indemnify and save Tenant harmless from all claims for labor or materials in
connection with construction, repair, alteration, or installation of structures, improvements, equipment or
facilities within the premises, and from the cost of defending against such claims, including attorney fees.
13.2 Subtenant's Obligations
In the event a Lien or Stop Notice is imposed upon the premises as a result of such construction, repair,
alteration or installation, Subtenant shall either:
(a) Record a valid Release of Lien/Stop Notice, or
(b) Deposit sufficient cash with Tenant to cover the amount of the claim on the Lien/Stop
Notice in question and authorize payment to the extent of said deposit to any
subsequent judgment holder that may arise as a matter of public record from Iitigation
with regard to a Lien/Stop Notice holder claim, or
(c) Procure and record a bond in accordance with Sections 3143 or 3196 of the California
Civil Code, which frees the premises from the claim of the Lien/Stop Notice and from
any action brought to foreclose the Lien/Stop Notice.
Should Subtenant fail to accomplish one of the three optional actions within 15 days after the filing of such
a Lien/Stop Notice, the Sublease shall be in default and shall be subject to immediate termination.
ARTICLE 14. DEFAULT
14.1 Default
The occurrence of any of the following shall constitute a material breach and default of this Sublease by
Subtenant.
(a) The abandonment or vacation of the premises by Subtenant. Failure to occupy and
operate the premises for thirty (30) consecutive days following the mailing of written
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notice from Tenant to Subtenant calling attention to the abandonment shall be deemed
an abandonment or vacation.
(b) A failure by Subtenant to observe and perform any other provision of this Sublease to be
observed or performed by Subtenant, where such failure continues for thirty (30) days
after written notice thereof by Tenant to Subtenant; provided, however, that if the
nature of such default is such that it cannot be reasonably cured within such thirty (30)
day period, Subtenant shall not be deemed to be in default if Subtenant shall within
such period commence such cure and thereafter diligently prosecute the same to
completion.
The making by Subtenant of any general assignment or general arrangement for the
benefit of creditors; the filing by or against Subtenant of a petition to have Subtenant
adjudged bankrupt or of a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Subteuaiit the same
is dismissed within sixty (60) days); the appointment of a trustee or receiver to take
possession of substantially all. of Subtenant's assets, where possession is not restored to
Subtenant within forty-five (45) days; or the attachment, execution or other judicial
seizure of substantially all of Subtenant's assets, where such seizure is not discharged
within thirty (30) days.
ARTICLE 15. ASSIGNMENTS, SUBLEASES AND ENCUMBRANCES
15.1 Voluntary Assignments, Subleases and Encumbrances
Subtenant shall not voluntarily assign, transfer or encumber its interest in this Sublease or in the premises,
or sublet all or any part of the premises, or allow any other person or entity (except Subtenant's authorized
representatives) to occupy or use all or any part of the premises without first obtaining Tenant's written
consent and the concurrence of the Federal Highway Administration, unless otherwise expressly permitted
by the provisions of this Article.
Tenant may withhold its consent to any such assignment, transfer, encumbrance or sublease unless all of
the following express conditions are satisfied:
(a) Tenant and Subtenant recognize that any sublessee is to be a non-profit entity and that any
sublease is to be for community benefit and social service purposes.
(b) Plans for any and all improvements to the sublease property by sublessee(s) will be
reviewed by Tenant, Landlord and the Federal Highway Administration for approval.
Subtenant's failure to obtain Tenant's required written approval of any other assignment, transfer, or
sublease shall render such assignment, transfer, or sublease void. Occupancy of the leased premises by a
prospective transferee, sublessee or assignee before approval of the transfer, sublease or assignment by
Tenant shall constitute a breach of this Sublease. Tenant's consent to any assignment, or sublease shall
not constitute a waiver of any of the terms, covenants or conditions of this Sublease. Such terms,
covenants and conditions shall apply to each and every assignment of this Sublease and shall be severally
binding upon each and every party thereto. Any document to transfer, sublet, or assign the leased
premises or any part thereof shall incorporate directly or by reference all the provisions of this Sublease.
15.2 Information to be Supplied to Tenant
Subtenant shall supply Tenant with the necessary information on all persons or firms to which Subtenant
proposes to sublet or assign any of its interest in the premises, or which might establish rights to enter,
control, or otherwise encumber the premises by reason of any agreement made by Subtenant. In addition,
with respect to any proposed sublease or assignment, Subtenant shall provide Tenant with:
(a) a copy of all documents relating thereto,
(c)
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(b) a statement of all terms and conditions of said transaction, including the consideration
therefor, and
(c) a copy of the financial statement of the prospective subtenant or assignee.
15.3 Encumbrances
(a) Tenant and Subtenant hereby acknowledge and agree that Subtenant intends to encumber by deed of
trust Subtenant's interest in the leased premises, for the purpose of constructing improvements thereon,
and/or the permanent financing of new improvements. Any such encumbrance is void without the
prior written consent of Tenant. Subtenant must secure the financing from a financial institution
(hereinafter called "Lender") qualified to do business in the State of California.
(b) Tenant agrees that it will not terminate this sublease because of any default or breach thereunder on the par
of Subtenant if the Lender or the trustee under such deed of trust, within ninety (90) days after service of
written notice on the Lender by Tenant of its intention to terminate said Sublease for such default or breach,
shall:
(1) Cure such default or breach if the same can be cured by the payment or expenditure of money
provided to be paid under the terms of said Sublease, or if such default or breach is not so
curable, cause the trustee under the deed of trust to commence and thereafter to diligently pursue
to completion steps and proceedings for the exercise of the power of sale under and pursuant to
the trust deed in the manner provided by law, and
(2) Keep and perform all of the covenants and conditions of this Sublease requiring the payment
or expenditure of money by Subtenant until such time as the leasehold shall be sold upon
foreclosure pursuant to the trust deed, or shall be released or reconveyed thereunder, or shall be
transferred upon judicial foreclosure; provided, however, that if the lender or the trustee under the
trust deed shall fail or refuse to comply with any and all of the conditions of this section, then and
thereupon Tenant shall be released from the covenants of forbearance herein contained, and all
rights of Subtenant and/or Lender and those who claim under Subtenant, under this Sublease,
shall terminate.
(c) In the event of a judicial foreclosure sale or trustee's sale of Lender's security interest pursuant to
the laws of the State of California, or an assignment in lieu of foreclosure, the transferee, be it
Lender or others, shall succeed to all of the right, title and interest of Subtenant.
(d) Tenant shall give Lender a written notice of any default by Subtenant under this Sublease which
notice shall be given concurrently with the notice to Subtenant. The prior written consent of
Tenant shall not be required:
(1) to a transfer of this Sublease at foreclosure sale under the trust deed, under judicial foreclosure
or by an assignment in lieu of foreclosure; or
(2) to any subsequent transfer by the Lender if the Lender is an established bank, savings and loan
association or insurance company, and is the purchaser at such foreclosure sale; provided that in
either such event the Lender forthwith gives notice to the Tenant in writing of any such transfer,
setting forth the name and address of the transferee, the effective date of such transfer and the
express agreement of the transferee assuming and agreeing to perform all of the obligations of
this Sublease, together with a copy of the document of which such transfer was made and the
payment to Tenant of the processing fee provided in Section 19.8. Any transferee under this
section shall be liable to perform the obligations of the Subtenant under this Sublease only so
long as such transferee holds title to the leasehold. Any subsequent transfer of the leasehold shall
not be made without the prior written consent of the Tenant and shall be subject to the conditions
relating thereto as set forth in this Sublease.
(e) Upon and immediately after the recording of the trust deed, Subtenant at Subtenant's expense,
shall cause to be recorded in the office of the Recorder of San Diego County, California, a duly
executed and acknowledged written request for a copy of any notice of default and of any notice
of sale under the trust deed as provided by the statutes of the State of California relating thereto.
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(f)
(g)
Concurrently with the execution of the consent to a trust deed, Subtenant shall furnish to Tenant a
complete copy of the trust deed and note secured thereby, together with the name and address of
the holder thereof.
The trust deed and all rights acquired thereunder shall be subject to each and all of the covenants,
conditions, and restrictions set forth in this Sublease and to all rights and interests of Tenant
hereunder, except as otherwise provided therein. In the event of any conflict between the
provisions of this Sublease and the provisions of any trust deed, the provisions of this Sublease
shall control.
No trust deed which Subtenant may execute or create at any time shall include the Tenant's right,
title and interest in and to the demised premises, nor shall any such trust deed subordinate or be
deemed to subordinate the fee title to the demised premises or Tenant's interest in this Sublease to
the security interest created by such trust deed. It is the intention and agreement of the parties
hereto that during the entire term of this Sublease Tenant's right, title and interest in and to the
demised premises shall not be subject to any liens/stop notices or encumbrances of any kind or
nature created either by Subtenant or by Tenant. Nothing contained in any such trust deed, and
no such trust deed, shall release or be deemed to release Subtenant from the full and faithful
observance and performance of any covenants and conditions in this Sublease contained and on
the part of Subtenant to be observed and performed, nor be deemed to constitute a waiver of any
rights of Tenant hereunder and the terms, covenants and conditions of this Sublease shall control
in case of any conflict between this Sublease and any such trust deed.
ARTICLE 16. NONDISCRIMINATION
Subtenant, for itself, its personal representatives, successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no
person, on the ground of race, color, or national origin shall be excluded from participation in, be denied
the benefits of, or otherwise subjected to discrimination in the use of said facilities, (2) in connection with
the construction of any improvements on said land and the furnishing of services thereon, no
discrimination shall be practiced in the selection of employees and contractors, by contractors in the
selection and retention of first -tier subcontractors, and by first -tier subcontractors in the selection and
retention of second -tier subcontractors, (3) such discrimination shall not be practiced against the public in
its access to and use of the facilities and services provided for public accommodations (such as eating,
sleeping, rest, recreation, and vehicle servicing) constructed or operated on, over, or under the premises,
and (4) Subtenant shall use the land in compliance with all other requirements imposed pursuant to Title
49, Code of Federal Regulations, Part 21 (49 C.F.R., Part 21) and as said regulations may be amended. In
the event of breach of any of the above nondiscrimination covenants, the Tenant shall have the right to
terminate this Sublease, and to re-enter and repossess said land and the facilities thereon, and hold the
same as if said Sublease had never been made or issued.
ARTICLE 17. SECURITY DEPOSIT
No Security Deposit is required
ARTICLE 18. ADDITIONAL PROVISIONS
18.1 Quiet Enjoyment
Tenant covenants and agrees with Subtenant that upon Subtenant paying rent and other monetary sums due
under the Sublease and performing its covenants and conditions, Subtenant shall and may peaceably and
quietly have, hold and enjoy the premises for the term, subject however, to the terms of the Sublease and
of any of the mortgages or deeds of trust described above.
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18.2 Captions, Attachments, Defined Terms
The captions of the Articles of this Sublease are for convenience only and shall not be deemed to be
relevant in resolving any question of interpretation or construction of any section of this Sublease.
Exhibits attached hereto, and addendum and schedules initiated by the parties, are deemed by attachment
to constitute part of this Sublease and are incorporated herein. The words "Tenant" and "Subtenant," as
used herein, shall include the plural as well as the singular. Words used in neuter gender include the
masculine and feminine and words in the masculine or feminine gender include the neuter. If there be
more than one Tenant or Subtenant, the obligations hereunder imposed upon Tenant or Subtenant shall be
joint and several. If the Subtenants are husband and wife, the obligations shall extend individually to their
sole and separate property as well as to their community property.
18.3 Entire Agreement
This instrument along with any exhibits and attachments hereto constitutes the entire agreement between
Tenant and Subtenant relative to the premises and this: agreement and the exhibits and attachments may be
altered, amended or revoked only by an instrument in writing signed by both Tenant and Subtenant.
Tenant and Subtenant agree hereby that all prior or contemporaneous oral agreements between and among
themselves and their agents and representatives relative to the leasing of the premises are merged in or
revoked by this agreement.
18.4 Severability
If any terms or provision of this Sublease shall, to any extent, be determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Sublease shall not be affected thereby, and
each term and provision of this Sublease shall be valid and be enforceable to the fullest extent permitted by
law.
18.5 Costs of Suit
If Subtenant or Tenant shall bring any action for any relief against the other, declaratory or otherwise,
arising out of this Sublease, including any suit by Tenant for the recovery of rent or possession of the
premises, the losing party shall pay the successful party a reasonable sum for attorney's fees which shall be
deemed to have accrued on the commencement of such action and shall be paid whether or not such action
is prosecuted to judgment. Should Tenant, without fault on Tenant's part, be made a party to any litigation
instituted by Subtenant or by any third party against Subtenant, or by or against any person holding under
or using the premises by license of Subtenant, or for the foreclosure of any Lien or Stop Notice for labor or
materials furnished to or for Subtenant or any such other person or otherwise arising out of or resulting
from any act or transaction of Subtenant or of any such other person, Subtenant shall save and hold Tenant
harmless from any judgment rendered against Tenant or the premises or any part thereof, and all costs and
expenses, including reasonable attorney's fees, incurred by Tenant in connection with such litigation.
18.6 Time, Joint and Several Liability
Time is of the essence of this Sublease and each and every. provision hereof, except as to the conditions
relating to the delivery of possession of the premises to Subtenant. All the terms, covenants and conditions
contained in this Sublease to be performed by either party if such party shall consist of more than one
person or organization, shall be deemed to be joint and several, and all rights and remedies of the parties
shall be cumulative and non-exclusive of any other remedy at law or in equity.
18.7 Binding Effect; Choice of Law
The parties hereto agree that all the provisions hereof are to be construed as both covenants and conditions
as though the words importing such covenants and conditions were used in each separate section hereof;
and all of the provisions hereof shall bind and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns. This Sublease shall be governed by the laws of the
State of California.
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18.8 Waiver
No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of
the party against whom the waiver is claimed and any waiver or the breach of any covenant, term or
condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any
other covenant, term or condition. Acceptance by Tenant of any performance by Subtenant after the time
the same shall have become due shall not constitute a waiver by Tenant of the breach or default of any
covenant, term or condition. Acceptance by Tenant of any performance by Subtenant after the time the
same shall have become due shall not constitute a waiver by Tenant of the breach or default of any
covenant, term or condition unless otherwise expressly agreed to by Tenant in writing.
18.9 Surrender of Premises
The voluntary or other surrender of this Sublease by Subtenant, or a mutual cancellation thereof, shall not
work a merger and shall, at the option of the Tenant, terminate all or any existing subleases or
subtenancies, or may, at the option of Tenant, operate as an assignment to it of any or all snch subleases cr
subtenancies.
18.10 Holding Over
If Subtenant remains in possession of all or any part of the premises after the expiration of the term hereof,
with or without the express or implied consent of Tenant, such tenancy shall be from month to month only
and not a renewal hereof or an extension for any further term, and in such case, month -to -month tenancy
shall be subject to every other term, covenant and agreement contained herein.
18.11 Interest on Past Due Obligations
Except as expressly herein provided, any amount due to Tenant not paid when due shall bear interest at a
rate one percent (1%) above the discount rate of the Federal Reserve Bank of San Francisco from the due
date. Payment of such interest together with the amount due shall excuse or cure any default by Subtenant
under this Sublease.
18.12 Recording
Subtenant shall not record this Sublease without Tenant's prior written consent, and such recordation shall,
at the option of Tenant, constitute a noncurable default of Subtenant hereunder. Either party shall, upon
request of the other, execute, acknowledge and deliver to the other a short form memorandum of this
Sublease for recording purposes.
18.13 Notices
All notices or demands of any kind required or desired to be given by Tenant or Subtenant hereunder shall
be in writing and shall be deemed delivered forty-eight (48) hours after depositing the notice or demand in
the United States mail, certified or registered, postage prepaid, addressed to the Tenant or Subtenant
respectively at the addresses set forth in Article 1.
18.14 No Reservation
Submission of this instrument for examination or signature by Subtenant does not constitute a reservation
of or option for sublease; it is not effective as a sublease or otherwise until execution and delivery by both
Tenant and Subtenant.
18.15 Corporate Authority
This section is not applicable.
18.16 Force Majeure
If either Tenant or Subtenant shall be delayed or prevented from the performance of any act required
hereunder by reason of acts of God, governmental restrictions, regulations or controls (except those
reasonably foreseeable in connection with the uses contemplated by this Sublease) or other cause without
fault and beyond the control of the party obligated (except financial inability), performance of such act
shall be excused for the period of the delay and the period for the performance of any such act shall be
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extended for a period equivalent to the period of such delay. Nothing in this clause shall excuse Tenant
from prompt payment of any taxes, insurance or any other charge required of Subtenant, except as may be
expressly provided in this Sublease.
18.17 Taxes
Subtenant recognizes and understands that this Sublease may create a possessory interest subject to
property taxation, and the Subtenant may be subject to the payment of property taxes levied on such
interest. Subtenant further agrees to pay any and all property taxes, if any, assessed during the term of this
Lease pursuant to Sections 107 and 107.1 of the Revenue and Taxation Code against Subtenant's
possessory interest in the Subleased Premises.
ARTICLE 19. TERMINATION
This sublease may be terminated upon ninety (90) days' written notice by:
(a) Subtenant, if it determines that it is no longer practical to use the premises for the
Specified Use set forth in Section 4.1.
(b) Subtenant, if it is unable to obtain or maintain any license, permit or other governmental
approval necessary to use the premises for the Specified Use set forth in Section 4.1.
(c) Tenant, if Subtenant is in default under this Sublease, including without limitation
Subtenant's failure or inability to use the premises for the Specified Use set forth in
Section 4.1.
In Witness Whereof Tenant and Subtenant have executed this Sublease as of the date first written above.
TENANT: CITY OF NATIONAL CITY, SUBTENANT: UNITED STATES INSTITUTE
CALIFORNIA
BY:
OF AMATEUR ATHLETICS
BY:
Nick n unz Brad Ramsey
Mayor Presi. nt
' Keefe
etary/Treasurer
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LEASE AREA No. 11-SDX805-12
APPROVED AS TO FORM:
BY: / ), atC-
SUBTENANT:T: SAMAFIAN HEALTH
CLINIC
BY:
Carrot Waymon, Ph. ri
Chairperson of the Board of Directors
BY: PPJU-vt-a ��' g
Elvira Magsarili, Tel
Secretary of the Board of Directors
ATTEST:
BY:
City Attorney City Clerk
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