Boys and Girls Clubs of Greater San DiegoAMENDMENT NO. 1 TO SUBLEASE
This Amendment No. 1 to Sublease ("Amendment") is entered into as of July 1, 2021 by and
between BOYS & GIRLS CLUBS OF GREATER SAN DIEGO (formerly known as BOYS &
GIRLS CLUB OF INLAND NORTH COUNTY), a California nonprofit corporation ("Landlord"
or "the Club"), and COMMUNTFY ACTION PARTNERSHIP OF SAN LUIS OBISPO COUNTY,
INC., a California nonprofit corporation ("Subtenant" or "CAPSLO"). Landlord and Subtenant may
sometimes be collectively referred to as "the Parties."
RECITALS
This Amendment is made with reference to the following facts:
A. WHEREAS, Landlord and Subtenant are parties to that certain Sublease dated June
22, 2016 ("Sublease") with regard to a portion of the commercial premises in the City of Poway,
County of San Diego, California, commonly known as 12988 Bowron Road, Poway, California
92064 as more specifically defined in the Sublease ("Premises"). (A true and accurate copy of the
Sublease and all exhibits thereto are attached hereto and made a part hereof, marked as Exhibit 1.)
B. WHEREAS, Subtenant is currently in possession of the Premises under the terms and
conditions of the Sublease with a lease term set to expire at 11:59 p.m. on June 30, 2021 ("Lease
Expiration Date").
C. WHEREAS, the Parties hereby desire to extend the lease term through June 30, 2026
and amend portions of the Sublease, on the terms and conditions set forth below, subject to review
and approval by the City of Poway.
FOR VALUABLE CONSIDERATION RECEIPT OF WHICH IS HEREBY
ACKNOWLEDGED, THE PARTIES HERETO ENTER INTO THIS AMENDMENT ON THE
TERMS SET FORTH BELOW.
AGREEMENT
1. Extension of Lease Term.
Effective upon (a) signatures by all Parties to this Amendment and (b) written approval and
consent by the City of Poway, and provided Subtenant is not in material default of the Sublease as
of the Lease Expiration Date, the Lease Expiration Date is hereby extended to June 30, 2026 at 11:59
p.m. ("Extended Lease Expiration Date").
/ / /
Page 1 of 5
Amendment No. 1 to Sublease
Boys & Girls Clubs of Greater San Diego / Community Action Partnership
of San Luis Obispo County, Inc.
Re: 12988 Bowron Road, Poway, California
2. Addendum to Section 3.1: Base Rent.
Beginning July 1, 2021, monthly Base Rent shall be $5,703.63 (which includes the CPI
adjustment pursuant to Section 3.2 of the Sublease).
3. Additional Rent.
For certain improvements made by the Landlord to the surrounding grounds at the Center,
which CAPSLO staff and children enjoy the use of, CAPSLO will be assessed, and CAPSLO shall
pay to Landlord, as an additional rent charge the sum of$789.39 per month for 12 months, payable
beginning July 1, 2021, to pay for CAPSLO's one-time share of these costs
4. Addendum to Section 3.2: Adjustment of Base Rent According to Consumer Price
Index.
The reference to "the first anniversary of the commencement of the term" in the first
sentence of the first paragraph of Section 3.2 of the Sublease shall refer to July 1 of each calendar
year.
The following language shall be added to the end of the first paragraph of Section 3.2 of the
Sublease: As soon as Landlord obtains the necessary data, it shall determine the Base Rent payable
from and after such adjustment date and shall notify Tenant of the adjustment in writing within
the current lease year. Should the monthly Base Rent for the period following such adjustment date
exceed the amount previously paid by Tenant for such period, Tenant shall forthwith pay the
difference to the Landlord, within 10 days of written notice.
5. False Alarms.
Subtenant shall reimburse Landlord the actual costs charged to Landlord by the City of
Poway or its related agents or departments as a result of any false security alarms that occur at the
Premises or any other part of the Property for which Subtenant has the right to access under the
Sublease, which is caused by Subtenant's failure to properly arm or disarm the alarm system. Such
expenses shall be considered Additional Rent and due within 30 days of invoice.
6. Revision to Section 21: Notices.
The name and contact information for Subtenant's representative in Section 21 shall be
changed to:
Page 2 of 5
Amendment No. 1 to Sublease
Boys & Girls Clubs of Greater San Diego / Community Action Partnership
of San Luis Obispo County, Inc.
Re: 12988 Bowron Road, Poway, California
To Subtenant:
Community Action Partnership of San Luis Obispo County, Inc.
Attn: Elizabeth "Biz" Steinberg, C.E.O.
Tel. #: (805) 511 1355
E-mail: esteinberg@capslo.org
The name and contact information for Subtenant's legal counsel in Section 21 shall be
changed to:
With Copy to:
Michael A. Friedrichs, Esq.
WHITE AND BRIGHT, LLP
970 Canterbury Place
Escondido, CA 92025
Tel. #: (760) 747-3200
Fax#: (760) 747-5574
E-mail: mfriedrichs@whiteandbright.com
7. Other Terms to Remain Same.
All other terms, conditions, rights, obligations, restrictions and entitlements of the Sublease
shall continue in full force and effect, including that adjustments in Base Rent under Section 3.2 of
the Sublease shall continue to occur on July 1 of each calendar year.
8. Representations and Warranties by Subtenant.
8.1 Subtenant represents and warrants to Landlord, as follows:
8.1.1 That Subtenant is not in default in any respect under the Sublease and all
payments due under the Sublease as of the effective date of this Amendment have been made;
8.1.2 That Subtenant does not have any defenses to its obligations under the
Sublease or this Amendment;
8.1.3 That Subtenant has no offsets against any monetary obligations due under the
Lease or this Amendment;
8.1.4 That Subtenant has no claims, disputes, or controversies with Landlord, in any
manner, whatsoever; and that Landlord is in full compliance with Landlord's obligations and duties
under the Lease;
Page 3 of 5
Amendment No. 1 to Sublease
Boys & Girls Clubs of Greater San Diego / Community Action Partnership
of San Luis Obispo County, Inc.
Re: 12988 Bowron Road, Poway, California
8.1.5 There are no other claimants to Subtenant's interest in the Sublease, and that
Subtenant is the only person in possession, use and occupancy of the Premises as of the effective
date of this Amendment; and
8.1.6 That Subtenant has had the opportunity to review this Amendment with
independent legal counsel prior to execution of this Amendment.
Subtenant also acknowledges and agrees that (a) these representations constitute a material
consideration to Landlord in entering into this Amendment, and (b) that Landlord is relying on these
representations in entering into this Amendment.
9. Entire Agreement.
9.1 The undersigned each acknowledge and represent that no promise or representation
not contained in this Amendment has been made to them, and that this Amendment contains the
entire understanding and agreement between the parties hereto and it contains all terms and
conditions pertaining to the Amendment of the Lease.
9.2 The undersigned further acknowledge that the terms of this Amendment are
contractual and not merely a recital, and that this Amendment is fully integrated.
10. Headings and Captions.
Headings and captions contained in this Amendment are for convenience only, and shall not
be considered for any purpose in construing this Amendment.
11. Severability.
If any covenant or condition contained in this Amendment shall be determined to be invalid
by a Court of competent jurisdiction, the invalidity of said covenant or condition shall not void any
other covenant or condition of the Amendment and the Amendment shall be read and interpreted as
if the invalid covenant or condition had never been inserted into the Amendment.
12. Modifications.
This Amendment cannot be modified or amended in any way, except in writing, signed by
Landlord and Subtenant.
I / /
Page 4 of 5
Amendment No. 1 to Sublease
Boys & Girls Clubs of Greater San Diego / Community Action Partnership
of San Luis Obispo County, Inc.
Re: 12988 Bowron Road, Poway, California
13. Representation by White and Bright, LLP.
Subtenant acknowledges that Michael A. Friedrichs, Esq. and the Law Offices of White and
Bright, LLP represent Landlord, only, in the negotiation and preparation of this Amendment, and do
not represent any other party to this Amendment.
IN WITNESS HEREOF the Parties have executed this Amendment No. 1 to Sublease as of
the date first set forth above.
SUBTENANT:
LANDLORD:
COMMUNITY ACTION PARTNERSHIP OF BOYS & GIRLS CLUBS OF GREATER
SAN LUIS OBISPO COUNTY, INC., a SAN DIEGO, a California
California nonprofit corporation � �al corporatio
By: Elizabeth "Biz" Steinlerg, C.E
APPROVED AND CONSENTED TO BY THE
CITY OF P WAY:
By ri e, City Manager
Q:\clients\3148.02 Misc\CAPSLO\Amendment No. 1 to SubLease.072021.wpd
anny Sherlock, CEO
Page 5 of 5
nonprofit
SUBLEASE
This Sublease ("Sublease") is entered into —Tan,c �7 z�/(o, between the BOYS &
GIRLS CLUBS OF GREATER SAN DIEGO (formerly known as BOYS & GIRLS CLUB OF
INLAND NORTH COUNTY), a California nonprofit corporation ("Landlord" or the "Club") •
• and COMMUNITY ACTION PARTNERSHIP OF SAN LUIS OBISPO CO., INC., a California
corporation, ("Subtenant" or"CAPSLO").
RECITALS
A. Pursuant to a "Boys and Girls Clubs of Inland North County Community Park
Lease Agreement" entered into on or about June 11, 2002 (the "Club Lease")the Club leased the
real property located at 12988 Bowron Rd., Poway, California 92064, County of San Diego,
State of-C '_ifornia (the "Property"), as more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference, from the City of Poway ("City"). The Property is
improved with a Building which building is used for the operation of the Club, among other
things.
B. Pursuant to the Club Lease, the Club is granted the right to sublet a portion of the
Property for use as a Head Start Program after receiving prior written consent of the City.
C. CAPSLO has been operating the Head Start Program at the Club since
appoximately August 27, 2012.
D. CAPSLO desires to re-sublet the Premises from the Club and the Club desires to
sublet the Premises to CAPSLO pursuant to the terms and conditions hereinafter set forth.
H. The Club and CAPSLO desire to obtain the City's consent to this new Sublease,
as required by the terms of the Club Lease with the City.
NOW, THEREFORE, in consideration of the mutual promises and covenant's 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 approval of this Sublease by the City and to the provisions of the
Club Lease between the City and the Club, Landlord hereby sublets the Premises of
approximately 2,460 square feet (as more fully described in Exhibits "B" and "C" attached
hereto and incorporated herein by reference, and including the Common Areas described in
Section 5.4 of this Sublease) to Subtenant and Subtenant leases the Premises from Landlord,
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 1
upon all of the terms and conditions set forth in this Sublease. The additional,space from the
prior Lease shall include an additional 826 square feet for a classroom and 49 square.feet for a
joining storage room for a total of approximately 2,460 square feet.
This Sublease subordinates-to the applicable covenants and conditions•of the Club
Lease between the City and the Club. In the event of conflict between the provisions of this
Sublease and those of the Club Lease between the City and Club, the Club.Lease between the
City and the Club shall control.
In_ addition, Subtenant shall be permitted to use the staff restroom and kitchen
subject to the restrictions as set for from time to time, at no additional cost or expense to
Subtenant.
2. Term.
2.1 Term.
2.1.1 The term ("Term") of this Sublease is for a period of five years,
commencing on July 1, 2016 ("Commencement Date" or "Effective Date"), and ending at 11:59
p.m. on June 30, 2021unless sooner terminated under the terms of this Sublease.
2.1.2 Option to Extend Term.
2.2 Possession. Subtenant hereby accepts the Premises in the condition
existing as of the Sublease Commencement Date as set forth in Paragraph 2.1 and agrees that its
use shall be subject to all applicable zoning, municipal, county, state and federal laws,
ordinances and regulations governing and regulating the.use of the Premises and the Building,
and any covenants or restrictions. Subtenant 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 Subtenant's business.
Subtenant will have examined and inspected the premises and will know and be
satisfied with the physical condition, quality, quantity and state of repair of the premises in all
respects and shall have determined that the same is acceptable to Subtenant "AS-IS", and
Subtenant acknowledges that, except as otherwise set forth herein, Subtenant is leasing the
premises in such "AS-IS" condition solely in reliance on its own inspections and examination,
and its own evaluation of the premises. Subtenant agrees that no representations, statements• or
warranties have at any time been made by Landlord, orr its agents, as to the physical condition,
quality, quantity or state of repair of the premises or related to the operation or prospects for the
premises in any respect which have not been expressed in this Lease. Landlord makes no
representations as to the ability of the Subtenant to utilize the business for Head Start.business.
Subtenant is to perform its own investigation to determine the suitability of the structure for •
operation Subtenant's business.
2.3 Inspection by Certified Access Specialist. To comply with the disclosure •
requirement of California Civil Code Section'1938, the Premises has not undergone inspection
by a Certified Access Specialist ("CASp) as defined in the Construction-Related Accessibility
Standards Compliance Act(Civil Code Section 55.51, et seq.).
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 2'•
3. Rent.
3.1. Base Rent. Subtenant shall pay to Landlord Base Rent as minimum
monthly rent, without deduction, setoff, prior notice, or demand the sum of$4,920.00 per month
(at a rate of$2.00 per square foot of space). Monthly installments of Base Rent shall be payable
monthly, in advance, on the first day of each month. 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 Landlord 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. Adjustment of Base Rent According to Consumer Price
Index. Commencing on the first anniversary of the commencement of the Term, and on each
subsequent anniversary of the commencement of the Term during the Term, including any
extensions or renewals, the Monthly Rent for the ensuing twelve (12) month period
("Adjustment Period") shall be an amount equal to the greater of(i) the Monthly Rent in effect
immediately prior to the commencement of this Adjustment Period (without regard to any
temporary abatement of rental then or previously in effect pursuant to the provisions of this
Sublease) or (ii) the product obtained by multiplying the.Monthly Rent in.effect immediately
prior to the commencement of the Adjustment Period (without regard to 'any temporary
abatement of rental then or previously in effect,pursuant-to the provisions of this Lease) by a
fraction, the numerator of which is the Index, as defined below, published nearest but prior to the
commencement date of the Adjustment Period, and the denominator of which is the Index
published nearest but prior to the commencement of the twelve (12) month period immediately
preceding the Adjustment Period. However, in no event shall the Rent be less than $4,920 per
month.
The term "Index" as used in this Sublease means the Consumer Price Index for
San Diego County, published by the Bureau of Labor Statistics of the U.S. Department of Labor.
If the Bureau of Labor Statistics revises the Index, the parties agree that the Bureau of Labor
Statistics will be the sole judge of the comparability of successive indexes, but if that agency
fails to supply indexes that it deems comparable, or if no succeeding index is published, then the
parties shall negotiate to determine an appropriate alternative published price index. If they are
unable to agree on an alternative index within thirty (30) days after the request to do so is made
by one party to the other, then either party may request that each appoint a person satisfactory to
it, within fifteen (15) days after this request, to select an alternative published price index. The
two (2) persons so appointed, within fifteen (15) days after the later of them is appointed, shall
appoint a third person acceptable to each to act with them in the selection of an alternative price
index. If either of the first two (2) fails to appoint the third, or if Landlord or Subtenant fails to
appoint one of the first two (2), then upon the request of either Landlord or Subtenant, the
vacancy or vacancies so existing shall be filled by an impartial person or persons appointed by
the presiding judge of the court of general jurisdiction in and for the county in which the
Property is located, with this judge acting in his or her individual rather than his or her judicial
capacity. If any appointee declines or is or becomes unable to serve, he or she shall be replaced
by another person appointed in the same manner. Within thirty (30) days after the appointment
process is completed, and on the basis of all pertinent facts, the appointees by majority vote shall
select an alternative published price index and advise Landlord and Subtenant in writing of the
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 3
selection. All fees and expenses incurred in the appointment of the persons shall be shared
equally by Landlord and Subtenant.
4. Use.
4.1. Use. CAPSLO shall use those portions of the Club's Property sublet to
CAPSLO herein only for CAPSLO's Head Start Program, with a maximum limit of forty-five
(45) pre-school children, located on the leased Premises at any one time, and for no other
purpose.
4.2. Compliance With Law. Subtenant 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 borne by Subtenant.
Subtenant 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 tenants in the building in which the
Premises is located(the "Building").
5. Maintenance,Repair and Alteration of Premises.
5.1. Condition of Premises. Subtenant hereby accepts the Premises in the
condition existing as of the date that Subtenant took possession of the Premises, subject to all
applicable zoning, municipal, county, state and federal laws, ordinances and regulations
governing and regulating the use of the Premises and the Building, and any covenants or
restrictions. Subtenant 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 Subtenant's business.
5.2. Landlord's Obligations For Repair and Maintenance. Landlord shall
repair and maintain in good condition the structural parts of the Building, which structural parts
include only the foundations, bearing and exterior walls, subflooring, roof, gutters and
downspouts on the Building. To the fullest extent allowed by law, Subtenant 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 Subtenant the right to 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.
5.3. Subtenant's Obligations For Repair and Maintenance. Subtenant
shall, at Subtenant's sole expense, 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 Subtenant) including, without limitation,' all glass,
doors, frames, plumbing, heating, air conditioning, ventilating and electrical, systems, lighting
facilities, fixtures, interior walls, interior surface of exterior walls,` ceilings, plate glass and
skylights, and all of Subtenant's personal property within the Premises. All operation and
maintenance, repair and replacement shall be made in compliance with all applicable laws and
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 4
governmental regulations. If Subtenant fails to perform Subtenant's obligations under this
Section 5.3, Landlord may, at Landlord's sole option, enter the Premises and perform such
obligations on Subtenant'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 as additional rent to Landlord.
Subtenant 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 Subtenant's usual business thereon. Subtenant shall
further conform to all rules and regulations now or hereafter reasonably 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 violation of any such rules and regulations by any other tenants.
5.4. 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 Building and Premises are located and which are for the general use and convenience of
Subtenant, other tenants of the Building and the City as set forth in the Club Lease. 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 and the City 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.
5.5. Alterations, Additions and Improvements. Subtenant shall not make
any alterations, additions or improvements to the Premises or the Building without the prior
written consent of Landlord. 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, 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 Subtenant 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 Landlord does not requite
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.
Subtenant shall pay, when due, all claims for labor or materials furnished or
alleged to have been furnished to or for Subtenant at or for use in the Premises or the Building,
which claims are or may be secured by any mechanic's or materialmen's lien against the
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 5
Premises, Building or any interest therein. Landlord may also require Subtenant to provide
Landlord, at Subtenant'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
of the work. The bond shall meet the requirements of Civil Code Section 3143. If Subtenant -
shall, in good faith, contest the validity of any such claim, lien or demand, then Subtenant 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, Subtenant 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
Subtenant to pay Landlord's attorneys fees and costs-of participating in such action.
Subtenant shall give Landlord not less than ten (10) 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 Subtenant
makes-any.alteration; addition or improvement without the prior written consent-of Laridlors? --
Landlord may require Subtenant to remove any or all of the same.
6. Insurance and Indemnity.
6.1. Liability Insurance. Subtenant shall, at Subtenant's sole expense, obtain
and keep in force during the Term of this Sublease a policy of general liability insurance
including combined single limit bodily injury and property damage insurance insuring Landlord,
Subtenant, City, including but not limited to their officers, directors, volunteers, agents and
employees against any liability arising out of Subtenant's ownership, use, occupancy and
maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be a
combined single limit policy in an amount not less than One Million Dollars ($1,000,000.00) per
occurrence and $2,000,000.00 aggregate. The policy shall insure performance by Subtenant of.
the indemnity provisions of Section 6.5. The limits of the insurance shall not, however, limit the
liability of Subtenant hereunder. Initial Certificates of Insurance and General Liability Deluxe
Endorsements showing Landlord and the City as additional insureds have been provided to the
Landlord and the City and are satisfactory for the purposes of this Section 6.1. Each time said
policy is renewed,a new Certificate of-Insurance.and,endorsement acceptable to Landlord and
City showing Landlord and the City as additional insured shall be provided to Landlord and the
City.
6.2. Subtenant's Failure to Obtain Insurance. If Subtenant fails to procure
and maintain any insurance required by Section 6.1, Landlord may, but shall not be required to,
procure and maintain such insurance. Subtenant shall immediately reimburse Landlord for all
costs therefor together with interest thereon at the maximum rate then allowed by law.
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 6
6.3. Increase of Insurance. Subtenant 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 even t that the Club's insurance is increased solely by reason of Subtenant's use,
occupancy, maintenance, or operation of the leased Premises, then Subtenant shall promptly
reimburse the Club for such increased cost upon demand by the Club.
The Subtenant 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.
6.4. Insurance Policies. Insurance required hereunder shall be with companies
holding a general policy holders rating of at least B plus, 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. Subtenant 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 Subtenant. No policy shall be cancelable or subject to reduction in coverage or
other modification except after thirty(30) days prior written notice to Landlord. Subtenant 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 Subtenant,
which amount shall be payable by Subtenant upon demand. Subtenant 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, City and their officers and employees (and at
Landlord's ption any additional parties designated by Landlord) as additional insureds.
6.5. Indemnity. Subtenant shall defend, indemnify and hold Landlord and
City, and i11 elected and appointed officials, officers, employees, and volunteers (the "City
Indemnities"), harmless from and against any claim, demand,judgment, award, fine, mechanics'
lien or other lien, loss damage, expense, charge or cost of any kind or character (including actual
attorney fees and court costs) arising directly or indirectly from (a) this Sublease, other than
claims relating to Landlord's performance or failure to perform as required by'this Sublease, (b)
labor dispute involving Subtenant or its contractors and agent, (c) the construction repair,
alteration, use, occupancy or enjoyment of the Premises, or from the conduct of Subtenant's
business or from any activity, work or thing done, permitted or suffered by Subtenant in or about
the Premises or the Building or elsewhere on the Property (hereinafter referred to as "Claims"),
including, without limitation, Claims caused by concurrent negligent act or omission whether
active or passive of Landlord or its agents, or the City Indemnities. Subtenant shall further
indemnify and hold Landlord and the City Indemnities harmless from and against any and all
Claims arising from any breach or default in the performance of any obligation of Subtenant
under this Sublease or arising from any negligence of the Subtenant or any of Subtenant'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 proceeding is brought against Landlord or the City Indemnities by reason of any such
Claim, Subtenant, upon notice from Landlord, or the City Indemnities, shall defend the same at
Subtenant's expense by counsel reasonably satisfactory to Landlord, and the City Indemnities.
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 7
Subtenant, 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
Subtenant hereby waives all claims in respect thereof against Landlord and the City Indemnities.
Notwithstanding the foregoing or anything to the contrary in this Sublease, Subtenant shall have
no obligation whatsoever to defend or indemnify Landlord or the City Indemnities to the extent
any such Claim arises out of the gross negligence, willful or criminal act of Landlord, or the City
Indemnities, respectively. In addition, the foregoing indemnity does not extend to any area of the
Property not controlled or used by Subtenant, nor does it extend to any obligations Landlord may
have under applicable statutory warranties.
'1' 6.6. Exemption of Landlord from Liability. Subtenant hereby agrees that
Landlord anjd the City Indemnities shall not be liable for injury to Subtenant's business or for any
loss of income therefrom or for damage to the goods, wares, merchandise or other property of
Subtenant, Subtenant's employees, invitees, customers or any other person in or about the
Premises. Further, Landlord and the City Indemnities shall not be liable for any injury to
Subtenant, Subtenant's 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_from.any other cause, whether the-dan ge-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 Subtenant. Landlord and the City Indemnities 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 the Building are partially or totally damaged or destroyed, from any cause
whatsoever, except through fault of Subtenant, whether or not such damage or destruction is
covered by the insurance required under Section 6, then Landlord may, at Landlord's sole
option, either: 1) restore the Premises, Building, or improvements to the condition existing
immediately prior 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 available for such restoration, Landlord shall repair the Premises or
Building to their condition existing immediately prior to the damage or destruction. Any
damage caused through fault of the Subtenant shall be repaired and restored to the condition
existing immediately prior to such damage or destruction at the sole cost and expense of the
Subtenant. Subtenant 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 Landlord's 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 Section 7.1, monthly
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 8
rent shall be abated proportionately with the degree to which Subtenant'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 Subtenant may use the Premises for
Subtenant's usual business.
7.3. Waiver. Subtenant waives the provisions of any statutes which relate 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 and Personal Property Taxes.
8.1 Subtenant shall pay for all utilities including, but not limited to, water, gas,
heat, electricity, power, telephone service, sewer connection, garbage disposal and other services
supplied to the Premises at a rate of ten (10) percent of the total cost of the Property's.utility
bills. Utilities shall be reimbursed to Landlord on a quarterly basis, no later than ten (10) days
after delivery of the utility bills provided by Landlord.
8.2 Taxes on Improvements and Personal Property. In the event any personal
property taxes are assessed against the Premises as a result of or related to Subtenant's tenancy
and property, Subtenant shall^pay before delinquency all taxes, assessments, license fees, and
other charges that are levied and assessed on improvements, personal property, alterations, and
trade fixtures on the Premises.
9. Licenses and Permits.
It shall be the sole and full responsibility of CAPSLO, at its cost, to obtain all
permits and licenses as are necessary to the use, operation, occupancy and/or maintenance of
those portions of the Property leased herein to CAPSLO. The effectiveness of this Sublease is
expressly made contingent upon the Club's receipt of copies of all licenses, proof of insurance
and other documentation reasonably requested by the Club and/or the City.
10. Hours of Operation.
CAPSLO 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. and
occasional evening or weekend use for Parent and/or Staff Meetings from 7:00 aim. to 9:00 p.m.
Monday through Friday and Saturday, 8:00 a.m. to 6:00 p.m.
11. Default.
11.1. Subtenant's Default. The occurrence of any of the f ollowing shall
constitute a default by Subtenant:
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 ten (10) consecutive days shall be deemed an abandonment and
vacation).
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 9
11.1.3. Failure to perform any. other provision of this Sublease (a
nonmonetary default) if the failure to perform is not cured within thirty (30) days after
notice has been.given to Subtenant. If the default cannot reasonably be cured within
thirty (30) days, Subtenant shall not be in default of this Sublease if Subtenant
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 Subtenant perform the provisions of 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 Section is to extend the
notice requirements of the unlawful detainer statutes of California.
11.1.4. Violation by Subtenant of any provisions of covenants,
conditions and restrictions ("CC&Rs") and/or any other recorded documents affecting
the Premises..
_.r
11.1.5. No interest of Subtenant 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 If Subtenant is or becomes bankrupt or insolvent or
is unable to pay Subtenant's debts as they become due, makes an assignment for
the benefit of creditors, or institutes a proceeding under the Bankruptcy Act in
which Subtenant is the bankrupt; or, if Subtenant 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;
11.1.5.2 If a writ of attachment or execution is levied on this
Sublease;
11.1.5.3 If, any proceeding or action to which Subtenant is a
party, a 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 Subtenant.
11.2. Intentionally Left Blank.
12. Termination.
This Sublease may be terminated as follows:
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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, Subtenant may,terminate this Sublease upon ninety (90)
days' written notice to the Club.
12.2. By Club,for CAPSLO's breach of any 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. Exception to Termination. Notwithstanding the above provisions
regarding termination but subject to Sections 12.5 and 12.6 below, this Sublease shall not be
terminated prior to June 30 in any year for which Subtenant has received funding for its Head
Start Program.
12.5. In the event that the Lease between the City of Poway and the Club is
terminated, for any reason, before the end of the Term of this Sublease, this Sublease shall
terminate. In addition, in the event the City of Poway and the Club enter into any modified or
new Lease agreement regarding the Property which will make performance of the Sublease
impossible or materially impracticable, the Club may, at its sole discretion, with n inety (90) days
notice, terminate this Sublease.
12.6. Surrender; Termination. Upon termination of this Sublease, Subtenant
shall surrender the Premises to Landlord in the same condition as received, ordinary wear and
tear excepted, clean and free of debris. Subtenant 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 as set forth in Section 5.5, 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.
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13. Late Charges.
Subtenant hereby acknowledges.that late payment by Subtenant 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 Subtenant is not received by
Landlord within ten (10) days after such amount is due then Subtenant 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 Subtenant. Acceptance of the late charge.by Landlord shall in no
event constitute a waiver of Subtenant'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.
14. Condemnation.
14.1. 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.
"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.
If, 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 to.this 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 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 Subtenant by Landlord
Sublease-BOYS'&GIRLS'CLUBS
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within that sixty (60) day period. If Landlord does not give notice of termination to Subtenant
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. Subtenant 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 Subtenant at its cost shall accomplish all necessary
restoration with no abatement of rent.
14.6. Award. The entire award shall belong to and be paid to Landlord except
that Subtenant shall receive from the award a sum attributable to Subtenant's improvements or
alterations made to the Premises by Subtenant in accordance with this Sublease which Subtenant
has-the right-to remove from the Premises pursu at to the-provisions of this-Sublease but elects - - ---- - --
not to remove.
15. No Broker.
Subtenant 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: Subtenant warrants that no claim for
commission for the leasing shall be presented to Landlord. Further, Subtenant agrees to
indemnify and defend Landlord in the event of any such claims.
16. Assignment.
16.1. No Assignment. Subtenant shall not 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 prior written consent, which consent shall not 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. If Consent is Given. If Landlord consents to a sublease, Subtenant
immediately and irrevocably assigns to Landlord, as security for Subtenant'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 Subtenant, may collect such rent
and apply it towards Subtenant's obligations under this Sublease; except that, until the
occurrence of an act of default by Subtenant, Subtenant shall have the right to collect such rent.
Sublease-BOYS'&GIRLS'CLUBS
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All rent received by Subtenant in excess of the rent payable by Subtenant to Landlord under this
Sublease shall be paid to Landlord, or any sums to be paid by an assignee to Subtenant in
consideration of the assignment of this Sublease shall be paid to Landlord if Landlord consents
to a sublease or assignment. If Subtenant requests Landlord to consent to a proposed assignment
or subletting, Subtenant shall pay to Landlord,, whether or not consent is ultimately given,
Landlord's reasonable attorney's fees incurred in connection with each such request.
16.3. Assignment by Operation of Law. No interest of Subtenant 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 institutes a proceeding under the Bankruptcy
Act in which Subtenant is the debtor; or, if Subtenant 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;
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,
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 Subtenant.
•
Sublease-BOYS'&GIRLS'CLUBS
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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 not so
exercised by Landlord, Subtenant's 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)-`hat there are no•uncur°d-defaults-in-Landlord's=per-formanec; and• = -.
more than one (1):months' rental has been paid in advance. If Subtenant fails to deliver the
certificate within ten (10) days, 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 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 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 authorized to effect such subordination on behalf of
Subtenant, unless the mortgagee or beneficiary named in such mortgage, deed of trust or other
encumbrance shall first agree in writing, for the benefit 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 action or proceeding to foreclose
said mortgage, deed of trust or other encumbrance.
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 15
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 of trust whether this Sublease is
dated or recorded prior to or subsequent to the date of recordation of such mortgage or deed of
trust.
19. jIntentionally left blank)
20. 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.
21. Notices.
Any notice, demand, request, consent, approval or communication that,either
party desires or 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 below. Either party may change its address by notifying the other
of the change-of address in accordance with-this Secti;ri --Notice`s haTh'oe-deemed effective--
upon receipt if personally delivered or seventy-two (72) hours from the date of mailing if mailed
as provided in this Section.
To Subtenant: Community Action Partnership of San Luis Obispo Co, Inc.
Attn: Jim Famalette
Tel. #: (805) 544-4355-182mail:
Fax#: (805) 549-8388
- Copy to: Robert H. Mott
960 Santa Rosa
San Luis Obispo, Ca 93401
Tel. No.:
Fax:
To Landlord: Danny Sherlock
Boys & Girls Clubs of Greater San Diego
P.O. Box 178569
San Diego, CA 92177
Tel. #: 858-533-0591
Email:dsherlock @sdyouth.org
Fax: 858-866-0595
With a Copy To: Laura B. Bright, Esq.
WHITE AND BRIGHT, LLP
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 16
970 Canterbury Place
Escondido, CA 92025
Tel. #: (760) 747-3200
Fax#: (760) 747-5574
E-mail: lbright@whiteandbright.com
22. Signs.
Subtenant 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.
23. Recording/Quitclaim Deed.
This Sublease shall not be recorded without 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 to the Premises, in recordable form,
designating Landlord as transferee.
24. Holding Over.
If Subtenant, with Landlord's consent, remains in possession of the Premises or
any-part thereof after expiration of the TePm,of=t his-Su leas�e;=such-occupancy-shall-be-a tenancy - - -- -
from month to month upon all of the other provisions of this Sublease pertaining to the
obligations of Subtenant but all options and rights of first refusal, if any, granted under the terms
of this Sublease shall be deemed terminated and be of no further effect during said month to
month tenancy.
25. Landlord's Right of Entry.
Landlord and Landlord's agents 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 tenants and making such alterations, repairs, improvements, or additions
to the Premises or the Building as Landlord may deem necessary or desirable. Landlord may at
any time place on or about the Premises any ordinary "for sale" signs and Landlord 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.
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, 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.
27. Rules and Regulations.
Subtenant agrees that it will abide by, keep and observe all reasonable rules and
regulations which Landlord 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 tenants of the Building. The violation of any such rules and
regulations shall be deemed a material breach of this Sublease by Subtenant.
Sublease-BOYS'&GIRLS'CLUBS -
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28. Security Measures.
Subtenant hereby acknowledges that the rent payable to Landlord 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. Subtenant assumes all responsibility for the
protection of Subtenant, it's agents and invitees from acts of third parties.
29. Easements.
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 Subtenant. Subtenant shall sign
any of the aforementioned documents immediately upon reasonable request of Landlord and
failure to do so shall constitute a material breach of this Sublease.
30. Intent.
The parties intend this Sublease to be a triple net lease and that Landlord shall be
at no cost or expense whatsoever on account of the Premises, the Building or the improvements
or the real property of which the Premises area part.
31. _._._Landlord s-Riglit-tc;=:E~r i erformance:_____.__.
If Subtenant 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 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.
32. Commencement of Action
Any claim, demand, right or defense of any kind by Subtenant, which is based
upon or arises in any connection with this Sublease or the negotiations prior to its execution,
shall be barred unless Subtenant 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.
33. Miscellaneous.
33.1. Time of Essence. Time is of the essence to this Sublease.
33.2. Additional Rent. Any monetary obligation, of Subtenant to Landlord
under the terms of this Sublease shall be deemed to be rent.
33.3. 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, including without limitations that certain Assignment and
Assumption of Sublease and Agreement to Assignment by and between Landlord, CDI HS and
NHA executed by CAPSLO and expressly made contingent on execution by Landlord and NHA
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 18
as of February 28, 2009. This Sublease may be modified only in a writing signed by all parties
hereto.
33.4. Severability. 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.
33.5. 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, except to the extent expressly provided in Section 12 of this
Sublease. Except to the extent expressly provided in Section 12 of this Sublease, 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.
33.6. Cumulative Remedies. No remedy or election hereunder shall be
deemeu exclusive bu sFia11,Whe- er possible;be cumulative with'all other remedies at law or in
equity.
33.7. Covenants and Conditions. Each provision of this Sublease to be
performed by Subtenant shall be deemed both a covenant and a condition.
33.8. Governing Law. This Sublease shall be governed by the laws of the State
of California.
•
33.9. Heirs, Successors and Assigns: Subject to the provisions restricting
assignment or subletting by Subtenant, or other provisions of this Sublease, this Sublease shall
be binding on the parties, their respective heirs,personal representatives, successors and assigns.
33.10. 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. If Landlord requests, Subtenant shall provide Landlord with
evidence of such authority satisfactory to Landlord.
33.11. 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.
33.12. Captions. The captions of this Sublease shall have no effect on its
interpretation.
33.13. 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 Sublease shall be construed in accordance with its fair
meaning, the captions being for the convenience of 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'&GIRLS'CLUBS
AND CAPSLO—POWAY 19
33.14. Joint and Several Obligations. If more than one (1) person is Subtenant,
the obligations imposed on Subtenant are joint and several.
33.15. Legal Representation. The Landlord has retained the law firm of White
and Bright, LLP to prepare this Agreement and any related documents. The parties acknowledge
that White and Bright, LLP has urged the Subtenant to retain independent legal counsel and tax
advice to review this Sublease on their separate behalf. Subtenant assumes full responsibility for
obtaining independent legal counsel to review this Sublease and acknowledges that White and
Bright, LLP has advised them to obtain such independent legal counsel. Should Subtenant fail to
obtain independent legal counsel they shall be deemed to waive any claims, rights, remedies, or
defenses, based in whole or in part, upon lack of legal representation or inadequate legal
representation. .
LANDLORD: BOYS • '•'D GIRLS CLUBS OF GREATER SAN DIEGO
By: 1��/�
Sherlock, CEO
4
_,�__ -_._ Subtena t,:<0 .. , ._ _ITYACTION ARTNERSHIP OF SAN I T,T_TS,OBISP_O- ,,-n7,TNTY,.INC.__..�__ ._ _ ._
By: 9t/4ii
fIts: ✓ O,
(Print name and title)
APPROVED AND CONSENTED TO BY THE CITY OF POWAY
Ws- / , LI 1-3 ---------
1)441 51oiler
Its: C',+ij MAkiQger
(Print name and title)
Sublease-BOYS'&GIRLS'CLUBS
AND CAPSLO—POWAY 20
(' Cad I - Cis_
EXHIBIT"A" .
LEGAL DESCRIPTION •
ALL THAT PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, T.14 S., R.2.W, S.B.B. & M., IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, GRANTED TO POWAY ROYAL MOBILE ESTATES
BY DEED FILED AUGUST 7, 1973 AS FILE / PAGE NO. 73-218887 IN THE OFFICE
OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY DESCRIBED AS •
FOLLOWS:
•
BEGINNING AT A 2/4 INCH IRON PIPE MARKING THE NORTHEAST CORNER OF
SAID SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 13
ACCORDING TO RECORD SURVEY MAP NO. 8255; THENCE ALONG THE •
NORTHERLY LINE OF SAID SOUTHWEST QUARTER OF THE SOUTHWEST
QUARTER, N 89'08'45" W (N 89°09'58" W PER ROS 8255). 643.42 FEET; THENCE
LEAVING SAID NORTHERLY LINE S 00°51'15" W, 218.00 FEET; THENCE S
30°44'02° E, 112.53 FEET; THENCE N 67°03'53° E, 208.07 FEET TO. THE
BEGINNING OF A TANGENT 200.00 FOOT RADIUS CURVE, CONCAVE
SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 22°14'36°, A DISTANCE OF 77.84
FEET; THENCE TANGENT TO SAID CURVE N 89°18'29" E, 56.81 FEET TO THE
'BEGINNING OF A TANGENT , 75.00 FEET RADIUS CURVE, CONCAVE
NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 21°28'57°, A DISTANCE OF 28.12
FEET; THENCE TANGENT TO SAID CURVE N 67°49'32" E, 47.78 FEET TO THE
BEGINNING OF A TANGENT 75.00 FOOT RADIUS CURVE, CONCAVE
SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 21°02'12"A DISTANCE OF 27.54 FEET; -
THENCE TANGENT TO SAID CURVE N 88°51'44" E, 182.54 FEET MORE OR LESS
. TO A POINT ON THE EASTERLY LINE OF SAID SOUTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 13; THENCE N 01°22'30" E (N 01°29'17° E
PER ROS 8255), ALONG SAID EASTERLY LINE 173.25 FEET MORE OR LESS TO
THE POINT OF BEGINNING.
•
CONTAINS 3.283 ACRES, MORE OR LESS.
THIS LEGAL DESCRIPTION WAS PREPARED UNDER MY SUPERVISION.•
6 •
i , . . It, so\,
DOUG f W. MASSON 8 8 x .
RCE 1 06, EXP. 6/30/05 w No.17706
1 Exp.913UrU5 * ?
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Sublease-BOYS'&GIRLS'CLUBS
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