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HomeMy WebLinkAboutReso 120-1985RESOLUTION NO. 120-85 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING APPROVAL AND EXECUTION OF LEASE 2 BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE ROBERT P. WARMINGTON COMPANY BE IT RESOLVED by the City Council of the City of South San Francisco that: 1. Approval of Lease. The Lease entitled "Lease 2 between the City of South San Francisco, as Landlord, and The Robert P. Warmington Company, as Tenant" is hereby approved and a copy of said Lease is attached hereto as Exhibit "1." 2. Execution of Lease. The Mayor is authorized to execute said Lease on behalf of the City, and the City Clerk attest his signature thereto. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 12th day of June , 1985, by the following vote: AYES: NOES: ABSENT: councilmembers Mark~N~ Addieqoj~Richard A. Haffey, ' G~s~NicOloPulOs; and Roberta Cerri Teglia None Councilmember Emanuele N, Damonte ATTEST: EXHIBIT' "1" TO RESOLUTION NO. 120-85 LEASE 2 between THE CITY OF SOUTH SAN FRANCISCO, as Landlord, and WARMINGTON SOUTH SAN FRANCISCO HOTEL' ASSOCIATES, as Tenant. June 12 Parking · 1985 TABLE OF CONTENTS 2. 3. 4. 5. 6. 7. 8. 9. 10. 1I. 12. 13. 14. 15. 17. 20. PARTIES PREMISES TERM RENT USE ASSIGNMENT AND SUBLETTING TENANT"S IMPROVEMENTS MAINTENANCE AND REPAIRS DESTRUCTION OR DAMAGE TAXES INSURANCE UTILITIES DEFAULTS BANKRUPTCY OR INSOLVENCY LANDLORD'S RIGflT TO CURE INTEREST ON UNPAID OBLIGATIONS LATE CHARGES INDEMNITY CONDEMNATION GENERAL PROVISIONS Page 1 1 1 '1 2 2 4 5 6 9 9 9 10 10 ! 11 LEASE 1. PARTIES. This Lease is dated as of June. 12 , 1985, by and between THE CITY OF SOUTH SAN FRANCISCO (".Landlord") and WARMINGTON SOUTH SAN FRANCISCO HOTEL ASSOCIATES ("Tenant"). PREMISES. 2.1 Premises. Landlord hereby leases to Tenant those certain premises ("the Premises") located at South San Francisco, California. The Premises consist of the real property owned in fee by Landlord more particularly described on Exhibit A attached hereto. ~ This Lease is made for the sole purpose of allowing Tenant to create on the Premises additional parking for employees and guests of Tenant's hotel to be constructed on neighboring property acquired by Tenant from Homart Development Co. 2.2 Condition of Premises. Tenant hereby accepts the Premises in their condition existing as of the date of possession hereunder, subject to all applicable zoning, municipal, county and state laws, ordinances, private restrictions and regulations governing and regulating the use of the Premises, and accepts this Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Tenant acknowledges that Landlord has made no warranty as to the suitability of the Premises for any particular purpose. Tenant shall have the right at its sole cost and expense, after the commencement of the term hereof, to improve the Premises with paving and other improvements suitable to the parking of automobiles as permitted by section 5.1 hereof. All plans for such improvements shall be subject to approval of Landlord and the Architectural Control Committee under the Declaration of Covenants Conditions and Restrictions which encumbers the Gateway Project.. In addition, Tenant shall be solely responsible for obtaining all necessary permits from Landlord and the South San Francisco Redevelopment Agency. 3. TERM The term of this Lease shall commence on June ., 1985, and expire on February 14, 1990, unless sooner terminated pursuant to any provision hereof. ! 4. RENT. 4.1 Payment and Amount. Tenant shall pay to Landlord as rent for the Premises: The sum of One Thousand Seven Hundred Sixty-Four Dollars ($1,764.00) per year p~yable One Hundred Forty-Seven Dollar~ ($147.00) Per month. Rent for any period during the term hereof which is for less than one month shall be a pro rata portion of the monthly installment. Rent shall be payable in advance without notice or demand and without any deduction, offset, or abatement in lawful money of the United States of America to Landlord at the address stated herein or to such other persons or at such other places as Landlord may designate in writing. 5. USE. 5.1 Use. The Premises shall be used and occupied by Tenant only for the parking of cars and for no other purpose whatsoever without the prior written consent of Landlord. 5.2 Compliance with Laws and Restrictions. During the term of this Lease, Tenant shall, at Tenant's sole expense, promptly comply with all applicable ordinances, zoning restrictions, rules, regulations, orders, _private covenants and restrictions, or any other requirement at any time affecting the Premises or any appurtenant rights or the use thereof, and in particular which affect the cleanliness, safety, occupation and use of the Premises. At all times, Tenants shall keep the Premises and the walkways adjacent to the Premises clear and free from all rubbish, dirt and debris. Tenant shall store within the Premises or at a location approved by Landlord all trash and garbage and arrange for the regular pickup of trash and garbage at Tenant's expense. 6. ASSIGNMENT AND 'SUBLETTING. Tenant shall not voluntarily or by operation of law assign, license, transfer, mortgage, sublet.or encumber all or any part of Tenant's interest in this Lease or in the Premises without first obtaining the prior __.written consent of Landlord, and any attempt to do so without such consent being first had and obtained shall be wholly void. No assignment or subletting shall be approved except as a part of the sale of Tenant's contiguous property or to a person, firm or corporation which is operating or leasing Tenant's hotel on the Tenant's contiguous property. No subletting or assignment, even with the consent of Landlord, shall relieve Tenant of the obligations of Tenant hereunder. The acceptance of rent by Landlord from any other person shall not be deemed to be a waiver of Landlord of any provision of this Lease or to be a consent to any assignment, subletting or other transfer. Consent to one assignment, subletting or other transfer shall not be deemed to constitute consent to any subsequent assignment, subletting or other transfer. 7. TENANT'S IMPROVEMENTS. 7.1 Tenant's Improvements. Tenant shall notJmake or permit to be made any alterations, improvements or additons (collectively "improvements") to the Premises, nor make any contract therefor,-without obtaining Landlord's prior written consent. During the term of this Lease, title to the improvements constructed by Tenant on the Premises with Landlord's prior written -2- consent shall be vested in Tenant. Tenant shall not, however, remove or permit the removal of any improvements except as permitted in this Lease. Upon the expiration or earlier terminiation of this Lease, all improvements or fixtures that Tenant may make or install or permit to be made or installed upon the Premises shall, (i) without compensation to Tenant or any other party, become Landlord's property free and clear of all. claims to or against them, and Tenant shall defend and indemnify Landlord against all liability or loss arising from such claims; and (ii) remain upon and be surrendered with the Premises; provided, however, that at its option Landlord may require Tenant to remove such improvements and fixtures at the expiration or termination of this Lease and to restore and repair any damage occasioned by such removal. In no event shall Landlord be liable for the~unamortized cost of such improvements or fixtures due to the expiration or termination of this Lease. 7.2 Notice of Non-Responsibility; Mechanic's'Liens. Before commencing or permitting any work relating to improvements affecting the Premises, Tenant shall notify Landlord in writing no later than 10 days in advance of the expected date of commencement thereof. Landlord shall then have the right at any time and from time to time to post.and maintain on the Premises such notices as Landlord reasgnably deems necessary to protect the Premises and Landlord from mechanics' liens, materialmen~s liens or any other liens. 'In any event, Tenant shall pay or cause to be paid, when due, all claims for labor or materials furnished to or for Tenant or permitted by Tenant at or for use on the Premises. Tenant shall not permit any mechanics' or materialmen's liens to be levied against the Premises for any labor or materials furnished or .claimed to have been furnished to Tenant or any party claiming through Tenant or to any agents 'or contractors in connection with work of any character performed or claimed to have been performed on the Premises by or at the direction of Tenant or any party claiming through Tenant. If within 10 days following the imposition.of any lien Tenant has not caused the lien to be released of record by payment or posting of a proper bond, Landlord, in addition to all other remedies provided in this Lease and by law, shall have the right, but shall not be obligated, to cause the lien to be released by such means as Landlord deems proper, including payment of the claim giving rise to the lien. Ail payments made and expenses incurred by Landlord in connection with the lien shall be considered additional rent in accordance with Article 14 of this Lease. 7.3 Indemnity Against Liens. Notwithstanding any other provision of this Lease, Tenant agrees to indemnify and save Landlord harmless from and against any and all costs, claims, judgments or other liabilities which are in any way connected with materials or labor furnished to Tenant or permitted by Tenant for alteration, improvement, or addition to the Premises. Tenant further agrees to' provide Landlord, at Landlord's request, with a -3- surety bond or other form of security which may be requested by Landlord prior to the commencement of any such improvements, if Landlord reasonably believes that such is necessary to protect the Premises and. Landlord's interest therein. 8. MAINTENANCE AND RE~AIR$. Tenant shall keep and maintain in good order, condition and repair, the Premises and every part thereof. If any repairs required to be made by Tenant are necessary, Landlord may demand that Tenant make them promptly, and if Tenant refuses or neglects to commence such repairs within 20 days and to complete them with reasonable dispatch, Landlord may make or cause such repairs to be made. If Landlord makes or causes . such repairs to'be made, Tenant shall on demand~of Landlord immediately pay to Landlord the cost of such repairs as additional rent in accordance with Article 14 of ~this Lease. DESTRUCTION OR DAMAGE. 9.1 Tenant's Obligation to Restore. If there is 'damage to the Premises caused by any casualty Tenant shall forthwith repair the damage° '9.2 Waiver. Tenant waives any rights Tenant have under California Civi~ Code Sections 1932 and 1933. 10. TAXES. 10.1 Payment of Taxes. Tenant shall pay all real estate taxes and assessments levied throughout the term of this Lease against the Premises. 10.2 Time of Payment - Proration. Ail such' taxes shall be payable by Tenant to Landlord within 15 days after receipt of an invoice from Landlord advising Tenant of taxes to be paid by Tenant. Taxes for the first and last years of the term hereof shall be prorated between Landlord and Tenant. 10.3 Tenant's Fixtures and ImDrovements. Tenant shall pay, prior to delinquency, all taxes assessed against and levied upon any trade fixtures, furnishings, equipment and all other personal property of. Tenant contained on the Premises or elsewhere, and shall pay all taxes attributable to any improvements which may be made to the Premises by Tenant. 10.4 Definition of Real Property Taxes. As used in this Lease, the term "real property tax" shall include any form of assessment, license fee, transit tax or fee, rent tax, levy, penalty, tax (other than income, inheritance, or estate taxes), or charge in lieu of tax, imposed by any authority having the direct or indirect power to tax, including any city, county, state or federal government, or. any school, lighting, drainage or other improvement district thereof, as against any legal or equitable interest of Landlord in the Premises, as against Landlord's right . -4- to rent or other income therefrom, or as against Landlord's business of leasing the Premises. ll. INSURANCE. ll.1 Liability Insurance. Tenant shali, at all times during the term hereof, and at Tenant's own cost and expense, procure and continue in force comprehensive liability insurance in an amount of not less than $5,000,000 Combined Single Limit for Personal Injury and Property Damage per occurrence and in the aggregate. The aforementioned minimum limit shall not, however, limit the liability of Tenant hereunder. 11.2 Policies. The insurer and form of all of policies required of Tenant shall be subject to Landlord's concurrence, which shall not.be unreasonably withheld. Certificates of such insurance policies shall be furnished to Landlord prior to commencement and shall reflect Landlord and the City of South San Francisco as the owner of the fee interest in the Premises as an additional insured. No such policy shall be cancellable or subject to reduction of coverage or to any other modification except after 30 days' prior-written notice to Landlord and the City of South San Francisco by the insurer. It is agreed that such insurance is and shall be primary to similar coverage carried by Landlord. 11.3 Compliance with Policies. Tenant shall make all reasonable efforts not to violate or permit to be violated any condition or provision of any of the policies required by this Article and shall satisfy all requirements thereunder. Tenant .shall deliver evidence of renewal or substitute coverage to Landlord not less than 10 days prior to expiration of such insurance. 11.4 Waiver of Subrogation. Landlord and Tenant each hereby releases the other from any and all liability or responsibility to the other or anyone claiming through or under the other bY way of subrogation or otherwise for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty was caused by the other party; provided, however, that this release shall be applicable and in force and effect.only with respect to loss or damage occurring during such times as the releasor's policies contain a clause or endorsement to!the effect that any such release shall not adversely affect or impair said policies or prejudide the right of the releasor to recover thereunder. Landlord and Tenant each agrees that it will req~est its insurance carriers to include in their policies such a ciause or endorsement. If extra costs are charged therefor, the party procuring the policy shall advise the other thereof and of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated to do so. ¸--5-- 12. UTILITIES. Tenant shall pay for all gas, heat, electricity, light, power, telephone and other communication service, water, janitorial services, scavenger services, sanitary and sewer charges and other utilities and services to the Premises. 13. DEFAULTS. 13.1 Events of Default. The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant: ~ - (i) Any failure by Tenant to pay the rental or to make any other payment required to be made by Tenant hereunder, if such failure continues for a period of three days after receipt of written notice thereof from Landlord. (ii) The abandonment or vacation of the Premises by Tenant. (iii) .A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant if such failure continues for 30 days after receipt of written notice thereof by Landlord to Tenant; provided, however, that if the nature of such default is such that. the same cannot be reasonably cured within the 30-day period, Tenant shall not be deemed to be in default if Tenant within the 30-day period commences such cure and thereafter diligently prosecutes the same to completion. Landlord agrees that,, provided it has received written -notice from a mortgagee under a mortgage or beneficiary under a deed of trust (collectively, "Mortgagee") encumbering the Premises, specifying Mortgagee's address and requesting that Mortgagee be given written notice of all monetary and non-monetary failures by Tenant to observe and perform the provisions of the Lease, Landlord shall deliver written notice of all such monetary and non-monetary failures by Tenant to Mortgagee at the same time it delivers written notice to Tenant, and permit Mortgagee to cure s~ch failures within the time periods for cure granted to Tenant herein; provided, that Mortgagee shall have ten days'following receipt of notice that Tenant has failed to make rental or other payments under the Lease in which to cure such failure. 13.2 Landlord's Remedies - Termination.!-In the event of any such default by Tenant, then in addition to any other remedies available to Landlord at law or in equity, Landlord shall have'the immediate option to terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of such intention to terminate. If Landlord elects to terminate this Lease, then Landlord may recover from Tenant: -6- (i) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus " (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform Tenant's obligations under this Lease or which in the ordinary course of things would be likely to result therefromf plus (v) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law. The term "rent" as used herein shalI be deemed to be the monthly rental and all other sums required to be paid by Tenant pursuant to the terms of this Lease. As used in subparagraphs (i) and (ii) above,'the "worth at the time of award" is computed by allowing interest at the rate commputed pursuant to Section 16 hereof. As used in subparagraph '(iii) above, the "worth at the time of award" is computed by discoUnting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1~. 13.3 Continuation of Lease. Even th0ughTenant has breached this Lease, this Lease shall continue in effect for so long as Landlord does not terminate this Lease, and Landlord may from time to time either recover all rental as it becomes due or relet the Premises or any part thereof for such term or terms and at Such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, all with the right, at Tenant's cost, to make alterations and repairs to the Premises. Should Landlord elect this remedy Tenant shall have the right to sublet the Premises with Landlord's consent, which consent shall not be unreasonably withheld. Acts of maintenance or preservation of or efforts to relet the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord's interest under this Lease. shall not constitute a termination'of this Lease. Notwithstanding any remedy taken without termination, LandlOrd may at any time hereafter elect to terminate this Lease for such previous breach. -7- 13.4 Relets. If Landlord elects to so relet, the rentals received by Landlord from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any cost of such reletting; third, to the payment of the cost of any alterations unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Should that portion of such rentals received from such reletting during any month which is applied to the payment of rent hereunder, be less than the rent payable during that month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord immediately upon demand therefor by Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall also pay to Landlord,. as soon as ascertained, any costs and expenses incurred by Landlord in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting. 13.5 Subletting; Subrents. Landlord shall have the right to receive all subrents and other sums falling due from subtenants and other occupants of the Premises (herein called "subtenants") during any period in which Landlord has the right under this Lease, whether exercised or not, to re-enter the Premises for Tenant's default, and Tenant shall not have any right to such sums-during that period. Landlord may at Landlord's election re-enter the Premises with or without process of law, without terminating this Lease, and collect these sums and/or bring action for the recovery of these sUms directly from such subtenants. 13.6 Removal of Property. In the event of any default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises. Such property may be removed and stored in a~publi¢ warehouse or elsewhere at the cost of and for the account of Tenant. 13.7 Other Relief. The remedies provided in this Lease are in addition to any other remedies available to Landlord at-law or in equity by statute or otherwise. 14. BANKRUPTCY OR INSOLVENCY. 14.1 Tenant's Interest Not Transferable. Neither Tenant's interest in this Lease, nor any estate created in Tenant by this Lease, shall pass to any trustee or receiver or assignee. for the benefit of creditors or otherwise by operation of law except as may specifically be provided pursuant to the Bankruptcy Code. 14.2 Termination. If the interest or estate created in Tenan~ by this Lease is taken in execution or by other process of law, or if Tenant's executors, administrators, or -8- assigns, if any, are adjudicated insolvent or bankrupt pursuant to the provisions'of, any state law or the Bankruptcy Code, or if Tenant is adjudicated insolvent by a court of competent jurisdiction other than the United States Bankruptcy Court, or ~f a recei%er or trustee of the property of Tenant is appointed by reason of the insolvency or inability of Tenan~ to pay Tenant's debts, or if any assignment is made of the property of Tenant for the benefit of creditors, then, in any such events, Tenant shall be deemed to be in material default and in breach of this Lease, and this Lease and all rights of Tenant hereunder shall automatically terminate. Landlord also reserves all other remedies provided in this Lease or bylaw. 15. LANDLORD'S RIGHT TO CURE. All agreements and provisions to be performed by Tenant under any of the terms of this Lease shall be at Tenant's sole cost and expense and without any abatement of rental, If Tenant fails to pay any sum of money, other than rental, required to be paid by Tenant hereunder or fails to perform any other act on Tenant's part to be performed hereunder and such failure continues for 30 days after notice thereof by Landlord, Landlord may, but shall not be obligated to, and without waiving or releasing Tenant from any obligations of Tenant, make any such payment or perform any such other act on Tenant's part to be made or performed as provided in this Lease. All sums so paid. by Landlord and all necessary incidental costs shall be deemed additional rent hereunder and shall be payable to Landlord on demand, and Landlomd shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the nonpayment thereof by Tenant as in the case of default by Tenant in the payment of rental. 16. INTEREST ON UNPAID OBLIGATIONS. Rent not paid when due shall bear interest at a rate not exceeding the higher of, (a) 10%, or (b) 5% per annum plus the rate (the "FRB Rate") prevailing on the 25th day of the month preceding the date on which the rent became due, as established by the Federal Reserve Bank of San Francisco, on advances to member banks under Section 13 of the Federal Reserve Act as now in effect, or as hereafter from time to time as amended (or if there is no such single determinable rate of advances, then the closest .counterpart of such rate as shall be designated by the Superintendant of Banks of the State of California, unless some other person or agency is delegated such authority by the State Legislature). Expenditures made by Landlord pursuan~ to Article 15 above shall bear interest at a rate not exceeding the higher, of (a) 10% per annum, or (b) 5% per annum plus the FRB Rate prevailing on the 25th day of the month preceding the date Landlord makes the expenditUre. 17. LATE CHARGES. Tenant acknowledges that late payment of rent will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such costs, being extremely difficult and impracticable to,fix. Such costs include, without limitation, processing and accounting charges, and late charges that may be -9- imposed on Landlord by the terms of its obligations. Therefore, if any installment of rent due from Tenant is not recovered by Landlord when due, Tenant shall pay to Landlord an additional sum of 6~ of the overdue rent as a late charge. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of late payment by Tenant. Acceptance of any late charge shall not consti%ute a waiver of Tenant's default with respect to the 'other rights and remedies available to.Landlord. · 18. INDEMNITY. Except as may arise from Landlord's sole negligence, Tenant shall indemnify, defend and hold Landlord harmless from any and all claims arising from Tenant's use of the Premises or from-the conduct of Tenant's business or from any activity or work which may be permitted or suffered by Tenant in or about the Premises and shall further indemnify, defend and hold Landlord harmless from and against any and all claims arising from any breach or default in the performance of any of Tenant's. obligations under this Lease or arising from any negligence of Tenant or any of Tenant's agents, contractors or employees or of any party claiming through Tenant and from any and all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. Tenant hereby, assumes all risk of damage to property or injury to persons in or about the Premises, and Tenant hereby waives all claims in respect thereof against Landlord. 19. CONDEMNATION. 19.1 Total or Partial Taking. If the whole of the .Premises is condemned or taken in any manner for any public or quasi-public use, this Lease and the term and estate hereby granted shall forthwith cease and terminate as of the date of vesting of title. If only a part of the Premises is so condemned or taken, then (i) if substantial structural alteration or reconstruction of the Premises shall, in the reasonable opinion of Tenant, be 'necessary or appropriate as a result of such condemnation or taking, Tenant may, at its option, terminate this Lease and the term and estate hereby granted, as of the date of such vesting of title, by notifying Landlord in Writing of such termination within 60 days following the date on which Teant receives notice of vesting of title or possession; or (ii) if Tenant does not elect to terminate this Lease, this Lease shall remain unaffected by such condemnation or taking, except that the rent shall be kbated to the extent that Tenant's use of the Premises is impaired. If this Lease and the term and estate hereby granted are not terminated as hereinbefore provided, Landlord shall, at its expense, but only to the extent of condemnation proceeds awarded to Landlord, restore with reasonable diligence the remaining structural portions of the Premises as nearly as practicable to the same condition as they were in prior to such condemnation or taking. -10- In the event of termination in any of the cases hereinabove provided, this Lease and the.term and estate hereby granted shall expire as of the date of such termination with the same effect as if that were the date hereinbefore set forth for the. expiration of the term of this Lease, and the rent hereunder shall be apportioned as'of such date. . 19.2 Award to Landlord. If all or any part of the Premises is taken by eminent domain, Landlord shall be entitled to any and all compensation, damages, income, rent,, awards, or any interest whatsoever which may be paid or made in connection' therewith, and Tenant shall have no claim against Landlord for the value of any unexpired term of this Lease or otherwise. Nothing herein, however, shall be deemed to preclude Tenant from obtaining, or to give Landlord any interest in, any award to Tenant for loss of or damage to Tenant's personal property. 20. GENERAL PROVISIONS. 20.1. Quiet Enjoyment. Provided Tenant performs all of Tenant's covenants and obligations hereunder, Landlord covenants that Tenant shall have peaceful and quiet enjoyment of the Premises without hindrance on the part of Landlord, and Landlord shall warrant and defend Tenant in the peaceful and quiet enjoyment of the Premises-against the claims of all persons claiming through or under Landlord. 20.2 Right of Entry. Landlord and/or its designee shall have the right to enter upon the Premises at all reasonable hours, and in all emergencies, or to inspect the Premises. 20.3 Attorneys' Fees. If either party brings an action to enforce the terms hereof or declare rights hereunder, the ultimately prevailing party in any such action shall be entitled to reasonable attorneys' fees to be paid by the losing party, as fixed by the Court. 20.4 Holding Over. Any holding over after the expiration of the term of this Lease with the consent of Landlord shall be construed to be a tenancy from month to month at a monthly rental equal to the rental being paid by Tenant in the last month of the term hereof, plus all other charges payable under this Lease,'and shall otherwise be on the terms and provisions of this Lease, so far as'applicable. 20.5 Transfer of Landlord's Interest in Premises. In'the event of any sale or exchange of the Premises by Landlord and assignment by Landlord of this Lease, Landlord shall be released from its covenants and obligations contained in, or derived from, this Lease arising out of any act, occurrence or omission relating to the Premises or this Lease occurring after the consummation of such sale or exchange and assignment. -11- 20.6 EstopDel Certificates. Tenant shall', at any time during the term of this Lease, upon not less than five days' prior written notice from Landlord, execute and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or if modified, stating the nature of such modification) and the date to which the rent and o~l~er charges are paid in advance, if any, and acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder (or specifying such defaults if they are claimed.) Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. 20.7 Time of Essence. Time is Of the essence in the performance of all covenants and conditions in this Lease. 20.8 Captions. The marginal headings or titles to the Articles and Sections of this Lease are not part of the Lease, but are inserted for convenience only, and shall have no effect upon the construction or interpretation of any part of this Lease. 20.9 Notices. Whenever, under this Lease, provision is made for any demand, notice or declaration of any kind, or where it is deemed desirable or necessary by either party to give or serve any such notice, demand or declaration to the other party, it shall be in writing and served either personally or sent by registered or Certified mail, postage prepaid, addressed to the addresses set forth below. Landlord: The City of South San Francisco City Hall, 400 Grand Avenue P.O. Box 711 South San Francisco, CA '94083 Attn: City Manager Tenant: Warmington South San Francisco Hotel Associates 3090 Pullman Street Costa Mesa, CA 92626 Either party may, by like notice, at any time and from time to time, designate a different address to which notices shall be sent. If such notices meet the requirements of this Section 20.10, they shall be deemed sufficiently served or given, for all purposes hereunder, on the date of delivery if personally delivered or 48 hours after the time they are mailed b~ United States mail. 20.10 Entire Agreement; Amendments. There .are no oral agreements or representations between the parties hereto. affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, agreements, representations and understandings, if any, between the parties hereto or between the parties hereto and any real estate broker who may represent either or both of said parties, and none thereof shall be used to interpret or construe this Lease. There are no -12- other representations or warranties between the parties, and all reliance with respect to representations is solely upon the representations and agreements contained in this Lease. This Lease may not be amended, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. 20.11 Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, or a termination by Landlord, shall not work a merger, and shall, at the option of Landlord, terminate all or any existing subt.enancies or may, at the option of Landlord, operate as an assignment to Landlord of any or all of such subtenancies. THE PARTIES HERETO have therefore affixed their signatures effective as of the date set forth in this Lease. WARMINGTON SOUTH SAN FRANCISCO HOTEL ASSOCIATES, a California limited partnership By: WARMINGTO~ HOTEL ASSOCIATES No. 3, a California general partnership, as its general partner BY: General Partner THE CITY OF SOUTH SAN FRANCISCO By: Title: ATTEST: City Clerk -I3- LEASE PARCEL 2 INDUSTRIAL WAY SOUTH SAN FRANCISCO REAL PROPERTY SITUATED IN THE CITY OF SOUTH SAN FRANCISCO~ COUNTY OF SAN MATEO~ STATE OF CALIFORNIA~ BEING A PORTION OF PARCEL NO. 2 AS SAID PARCF_-L IS DESCRIBED IN THE DEED FROM UNION IRON WORKS DRY DOCK COMPANY TO THE CITY OF SOUTH SAN FRANCISCO DATED MAY lf)~ 1f~43 AND RECORDED IN BOOK 10Ti) OF DEEDS AT PAGES 77 THROUGH 7,9, RECORDS OF SAN MATEO COUNTY~ SAID PORTION OF PARCEL NO. 2 ABUTTING THE LANDS SHOWN ON THE MAP, ENTITLED "FINAL MAP GATEWAY CENTER" RECORDED IN VOLUME 107' OF MAPS AT PAGE 27, RECORDS OF SAN MATEO COUNTY, SAID PORTION MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH CORNER OF LOT 8 AS SHOWN ON SAID MAPi THENCE N35o42'41"E ALONG THE NORTHWESTERLY BOUNDARY OF SAID MAP 12Z.03 FEET TO A POINT; THENCE LEAVING SAID NORTHWESTERLY BOUNDARY WESTERLY ON A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 338.02 FEET~ THE RADIAL CENTER OF SAID CURVE BEARING S30°lS~2~t"W FROM SAID P. OINT~. THROUGH A CENTRAL ANGLE OF 2o45'08'' AN ARC DISTANCE OF 1~;.24 FEET TO A POINT 40 DISTANT AT A RIGHT ANGLE SOUTHEASTERLY FROM THE SOUTHEASTERLY LINE OF THE RAILWAY RIGHT OF WAY OF SOUTHERN PACIFIC COMPANY AS MENTIONED IN SAID DEED FROM UNION IRON WORKS DRY DOCK COMPANY; THENCE 53go42'41nW 123.6(; FEET TO A POINT; THENCE EASTERLY ON A CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 218.01 FEET, THE RADIAL CENTER OF SAID CURVE BEARING S21oI§'I2"W FROM SAID POINT, THROUGH A CENTRAL ANGLE OF 4o21'36'' AN ARC DISTAN(;E OF 16.§9 FEET TO THE POINT OF BEGINNING OF THIS DESCRIPTION. CONTAINING 1565 SQUARE FEET, MORE.OR LESS. EXHIBIT. A t ~,-LANDS OF TH~ CI. TY_OF SOUTH SAN FRANCISCO TO BE. LEASED , OF HOHART INC. LANDS OF THE CITY 0 S.S.F. _ ' x I . . ~' LOT7 ~ ~%~ PARCEL 8C .D. ~ ~ ,~~ 2,70 AC,-~ ~ I '] ~ ...... ~ - lit " ~ '~ ~ , u L=31-13 k~ k ~ ~ ~-ee ~o [5 ~ LOT · ' X% ox LOCATIOI, LANDS OF TP~ CITY OF SO. SAN F~'ANCISCC FOR LEAS NO. DATE REVISION BY APP. SCALE: 1 "=,100' IAPPROVED: LDRAWN= CITY OF SOUTH SAN FRANCISCO DEPARTMENT OF PUBLIC SERVICES DRAWING NO. =.XHIBIT ....