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HomeMy WebLinkAboutReso - CC - 010-1942RESOLUTION NO. BE IT RESOLVED by the City Council of the City of Burlingame: That a lease be entered into, for and in behalf of the City, with the Capital Company, a corporation, for the rental of certain premises numbered and designated as 271 Park Road, in the City of Burlingame, to be used by the Department of Public Works and the Engineering Department of said City, according to the terms of a lease agreement entered into between the said Capital Company and said City, dated February ,5, , 1942, a copy of which is hereto attached and made a part of this Resolution; BE IT F(;RTHER RESOLVED that the Mayor of said City be, and he is hereby, authorized to execute said lease for and in behalf of the said City of Burlingame. The foregoing Resolution was introduced and adopted at a regular meeting of the City Council of said City of Burlingame held on May 4, 1942, by the following vote: Ayes: Councilmen: Cr)lcamrn _ -,)phi _ 4„nt - Rpfh Noes: Councilmen : 1c Absent: Councilmen: 3urrows OR. ATTEST: CITY CLERK. LEASE `- icy 4 W Emir, made and entered into this 5th &r 0J February ,19 BANK OF A ERICA NATIONAL TRUST AND SAVINGS ASk3OCIATIONq a national b ankinC association hereinafter called lessor, and CITY OF BMi LINGAME called lessee, , hereinafter MUtl?i3OM4: That lessor does hereby lease unto lessee and lessee does hereby hire and take from lessor those certain premises described as follows: `I°hose certain premises cormaonly known dnd desl6nR ved as 211"'Park Igo d, 3urlin�,�=, e, uayiforn:ia, to be used f o Cii;q + ' ices the term of f Ive years of i`ebruary January commencing on the , 19 4t` , and ending on the 19 `r , at the total rental of $ in lawful money of the United States of America as follows: $ and for no other purpose for 4 th day 31 s t day of 2400.00 payable on and in consideration of the execution hereof, receipt of which is hereby acknowledged, and $ 40.00 on the 4 th day of Bch every month thereafter ,and 4G .00 on the 4th day of each and until said total rental shall be paid. In addition, the lessee shall pay in advance on the first day of each month ................................................ for water furnished said premises, which monthly payments shall be deemed additional rental hereunder. Otherwise, this lease shall be upon the following terms and conditions, namely: 1. Lessee agrees to pay said rental at the time, in the amount and manner herein provided and to do, perform and meet each and every covenant, condition and obligation contained herein. 2. Lessee agrees that in the event of the inability of lessor to deliver to lessee possession of said premises at the commencement of said term, lessor shall not be liable for any damage caused thereby, nor shall this lease be void or voidable, but lessee shall not be liable for rent until such time as lessor offers to deliver possession of said premises to lessee. However, the term hereof shall not be extended by such delay. If Lessee with lessor's consent takes possession prior to the commencement of the said term, lessee shall do so subject to all the covenants and conditions hereof, and shall pay rent for the period ending with the commencement of the said term at the same monthly rate as that prescribed for the first month of the said term. 3. If lessee holds possession hereunder after the expiration of the teriq of `f is lease with consent of lessor, lessee shall become a tenant from month to month at the monthly rental of $ �' ►�, payable in advance, on the first day of each and every month and upon all of the terms and conditions herein specified. 4. Lessor and the agents and employees of lessor shall have the right to enter upon said premises at all reason- able times to inspect the same to see that no damage has been or is done and to protect any and all rights of lessor and to post such reasonable notices as lessor may desire to protect the rights of the lessor. S. Lessee accepts the premises as they are now and agrees that the premises are now in a tenantable and good condition and that lessee shall at lessee's cost keep said premises both inside and out, including the sidewalks adjacent thereto and the glazing, in good condition and repair during the term, and that the premises shall not be altered, repaired or changed without the prior written consent of lessor; lessee agrees that all alterations, additions and improve- ments, including fixtures, made in, to, or on, the premises, except unattached movable business fixtures, shall be the property of lessor and shall remain upon and be surrendered with the premises except that lessee will ascertain from lessor within thirty days before the end of the term of this lease whether lessor desires to have the premises or any part or parts thereof restored to their condition when the premises were delivered to lessee and if lessor shall so desire then lessee shall restore said premises or such part or parts thereof before the end of the term of this lease entirely at lessee's own cost and expense; lessee further agrees not to overload the said premises or to install any machinery therein without the written consent of lessor and that all damage or injury done to the premises by lessee, or by any person who may be in or upon the premises shall be paid for by lessee. Lessee agrees at the expiration of the term of this lease, or upon the earlier termination thereof for any reason, to quit and surrender said premises in good condition and repair, reasonable wear and tear and damage by acts of Cod or fire excepted. Lessee hereby waives the provisions of Sections 1941 and 1942 of the Civil Code of the State of California and any and all other statutes or laws permitttrag a tenant to make repairs at the expense of a landlord or to terminate a lease by reason of the condition of the premises. Lessee agrees to take out full coverage plate glass insurance on all plate glass on said demised premises, loss payable to lessor and lessee as their interest may appear. 6. Lessee shall not assign this lease, nor any right hereunder, nor sublet the premises, nor any part thereof, without the prior written consent of lessor. No consent to any assignment of this lease, or any subletting of said premises, shall constitute a waiver or discharge of the provisions of this paragraph, except as to the specific instance covered thereby; nor shall this lease nor any interest therein be assignable by action of law including bankruptcy, both invol- untary and voluntary, and no Trustee, Sheriff, Creditor or Purchaser at any judicial sale, or any officer of any court or receiver except if appointed as herein specifically provided shall acquire any right under this lease or to the posses- sion or use of the premises or any part thereof without the prior written consent of lessor. Any violation of the terms of this paragraph shall at the option of lessor be deemed a breach of this lease. 7. Lessee agrees that if lessor is involuntarily made a party defendant to any litigation concerning this lease or the demised premises or the premises of which the demised premises are a part by reason of any act or omission of lessee and not because of any act or omission of lessor, then lessee shall hold harmless the lessor from all liability by reason thereof including reasonable attorney's fees incurred by lessor in such litigation and all taxab e court costs and in case -lessor brings an action against lessee to enforce any of the terms hereof or commences a summary action under the Unlawful Detainer Act of the State of California for the forfeiture of this lease and the possession of said premises, or either of them, and lessor shall prevail in such action, lessee agrees to pay to lessor such attorney's fees and expenses as the court may deem reasonable, and the right to such attorney's fees and expenses shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment, and if prosecuted to judgment, such fees shall be included in said judgment. This lease is made upon the express condition that if default be made in the payment of the rent above reserved, or any part thereof, or if lessee fails or neglects to perform, meet or observe any of lessee's obligations hereunder or if lessee shall abandon or vacate said premises, lessor or the legal representative of lessor at any time thereafter without notice or demand, may lawfully declare said term ended, and re-enter said demised premises, or any part thereof, either with or without process of law, and expel, remove and put out lessee or any person or persons occupying said premises, and may remove all personal property therefrom, using such force as may be necessary to again repossess and enjoy said premises as before this demise, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant or condition, and without liability to any person for damages sustained by reason of such removal. Lessor may likewise at lessor's option, but at the cost of lessee, and in addition to any other remedies which lessor may.have upon such default or failure or neglect and without notice to lessee petition the Superior Court of the State of California for and be entitled as a matter of right to the appointment of a receiver and said Court may appoint such receiver and vest in him such powers and authority as may be necessary or proper to fully protect all the rights herein granted or reserved to lessor. Any such receiver may take possession of any personal property belonging to the lessee and used in the conduct of the business then being carried on by the lessee in the said premises, and may use the same in conducting such business on the premises, without compensation to the lessee. Lessor may likewise at lessor's option and in addition to any other remedies which lessor may have upon such de- fault, failure or neglect and upon entry therefor repair, alter and change the demised premises as lessor may deem fit and let the premises or any part thereof from time to time at any rental and on any terms and for any part or all of the balance of the term hereof that lessor may deem desirable in lessor's discretion; and lessor may in said letting also let the said premises for a period extending beyond the expiration of the term hereof, which shall not prejudice or invalidate any of lessor's rights in this lease reserved, but the period beyond the term hereof shall in no event be for the account of lessee. Upon such entry the lessee shall be liable to the lessor as follows: (a) for the installments of rent and other sums falling due hereunder for the period or periods after entry during which the premises remain vacant which sum s_shall be_ p y-__ _ able as they become due hereunder; (b) for all expenses, including commissions, which may be incurred by lessor from time to time during the term hereof for re -letting the said premises, which expenses shall be payable as they are incurred; and (c) while said premises are subject to any lease or leases made by lessor pursuant to this paragraph, for the amount by which the monthly installments payable under such new lease or leases is less than the monthly installments of rent payable hereunder, which deficiency shall be payable monthly as the same is determined. If the lessor either before or after such entry elects to exercise the right given it by the next succeeding paragraph to accelerate the unpaid amount of rent, it shall at any time after such entry have the election to recover in lieu of the amounts which would thereafter be payable under the preceding sentence of this paragraph, the amount by which the rental value of the portion of said term unexpired at the time of such election is less than the entire amount of unpaid rent payable hereunder for said unexpired portion of said term, which deficiency and any expenses, including commissions, incurred by lessor in leasing the said premises shall be due to and recoverable by the lessor at the time it exercises the said election, notwithstanding that the full term hereof has not expired; and if the lessor after such entry leases the said premises, then the rent payable under such lease shall be conclusive evidence of the rental value of the said unexpired portion of the said term. No notice of the exercise of the election given lessor by the preceding sentence need be given. Lessor may likewise at lessor's option and in addition to any other remedies which lessor may have upon such de- fault, failure or neglect, give to lessee written notice of such default, failure or neglect and advise lessee thereby that, unless all the terms, covenants and conditions of this lease are fully complied with within thirty (30) days after the giving of said notice, the entire amount of rent herein reserved or agreed to be paid and then remaining unpaid shall immediately become due and payable upon the expiration of said thirty days and unless all the terms, covenants and conditions of this lease are fully complied with by lessee within said thirty days the whole of said rent shall immedi- ately become due and payable upon the expiration of said thirty days without further notice to lessee. 8. The subsequent acceptance of rent hereunder by lessor shall not be deemed a waiver of any preceding breach of any obligation hereunder by lessee other than the failure to pay the particular rental so accepted; and the waiver of any breach of any covenant or condition by lessor herein shall not constitute a waiver of any other breach regardless of knowledge thereof. 9. It is agreed that lessor has reserved and shall at any and all times have the right to alter, repair or improve the said building of which the said demised premises are a part, or add thereto, and may for that purpose erect scaffolding and all other necessary structures about and upon the demised premises and lessor and lessor's representatives for that purpose may enter in or about the said demised premises and with such material as lessor may deem necessary therefor and lessee waives any claim to damages including loss of business resulting therefrom. 10. Lessee agrees that in the event lessor holds the demised premises or the premises of which the demised prem- ises are a part by virtue of any lease or tenancy, that lessee will not suffer any act of omission or commission on the premises which will violate any of the terms and conditions of the said lease or tenancy, lessee hereby admitting knowl. edge of and familiarity with the terms and conditions of the said lease or tenancy, and in event the said lease or tenancy of lessor is terminated for any cause then this lease shall at lessor's option forthwith terminate and lessor shall not be under any responsibility or liability therefor to lessee. 11. This lease is made upon the express condition that lessor is to be free from all liability and claim for damages by reason of any injury to any person or persons, including lessee, or property of any kind whatsoever and to whomso- ever belonging, including lessee's, from any cause or causes whatsoever while in, upon, or in any way connected with the said demised premises or the said sidewalks adjacent thereto during the term of this lease or any extension hereof or any occupancy hereunder, lessee hereby covenanting and agreeing to indemnify and save harmless lessor from all liability, loss, cost and obligations on account or arising out of any such injuries or losses however occurring. Lessee further agrees to takr •t and keep in force during the life hereof F _ ssee's expense public liability insur-' ance in companies and through a,Kers selected by lessor to protect against an, ,_iability to the public incident to the use of or resulting from any accid--t occurring in or about said premises including elevators, if any, in the amount of Ten Thousand ($10,000.00) Do: to indemnify against the claim of one per and Twenty Thousand ($20,000.00) Dollars against the claims of two**%Ir more persons. The said policies shall insuu*the contingent liability of lessor and - are to be placed with lessor, and lessee is to obtain a written obligation on the part of the insurance carriers to notify lessor in writing prior to any cancellation thereof, and lessee agrees, if lessee does not keep such insurance in full force and effect, that lessor may take out the necessary insurance and pay the premium and the repayment thereof shall he deemed to he part of the rental and payable as such on the next day upon which rent becomes due. 12. Lessee agrees to pay for all the water, fuel, gas, oil, heat, electricity, power, materials and services which may be furnished to or used in or about said premises during the term of this lease and to keep the same free and clear of any lien or incumbrance of any kind whatsoever created by lessee's acts or omissions. If any security be given by the lessee to secure the faithful performance of all or any of the covenants of this lease on the part of the lessee, the lessor may transfer and deliver the security, as such, to the purchaser of the reversion, in the event that the reversion be sold, and thereupon the lessor shall be discharged from any further liability in reference thereto. 13. Lessee agrees that the said lessee's business shall be established and conducted throughout the term hereof in a first class manner and that lessee will not use the demised premises for, or carry on or permit upon said premises any offensive, noisy or dangerous trade, business, manufacture or occupation, or any nuisance or anything against public policy, nor permit any auction sale to be held or conducted in or about said premises and lessee further agrees that the herein demised premises shall not be used or be permitted to be used in whole or in part during the said term of this lease for any purpose or use in violation of any of the laws, ordinances, regulations or rules of any public authority at any time applicable thereto and particularly those referring to the storing, transportation, sale, gift; and delivery of liquor; and lessee agrees that the commencement of abatement proceedings against the herein demised premises or any portion thereof for the violation of any law pertaining to liquor or the red light abatement law may, at the option of lessor, be deemed a breach of the terms of this lease; and lessee expressly agrees at all times during the term of this lease at lessee's own cost to construct, repair, maintain and do all things necessary to maintain the herein demised premises, including sidewalks, in a clean, neat and sanitary manner and in compliance with any and all laws, ordinances, rules and regulations of any public authority in force during the term of this lease, and not to permit any news stands, taxi stands, flower stands or any business to be operated in front of the demised premises. 14. Any notice, demand or communication under or in connection with this lease may be served upon lessor by personal service, or by mailing the same by registered mail in the United States Post Office, postage thereon fully prepaid, and directed to lessor at the Sixth Floor, 1 Powell Street, San Francisco, California and may likewise be served on lessee by personal service or by so mailing the same addressed to lessee at demised premises Either lessor or lessee may change such address by notifying the other party in writing as to such new address as lessee or lessor may desire used and which same shall continue as the address until further written notice. 15. Lessee agrees to allow two "For Sale" or "To Let" signs of a reasonable size to be put up and remain on the front of the premises during the last sixty (60) days of the term and to allow prospective tenants or purchasers or applicants to enter and examine the premises during said last sixty (60) days; and lessee further agrees not to leave the said premises unoccupied or vacant during the term; and lessee agrees that no goods, merchandise or materials shall be kept, stored or sold in said demised premises which are in any way hazardous and further agrees not to suffer any act of omission or commission on the premises which will increase the rate of insurance. If the said insurance rate is increased by such an act, then the increased cost of such insurance on the premises of which the herein demised premises are a part shall be paid by lessee and as rental on the next day succeeding said payment upon which rent becomes due and as a part thereof. 16. The said lessor reserves the right to the use of the exterior walls and roofs of the demised premises, and it is agreed that the lessee will not inscribe, paint or affix any signs, advertisements, placards, nor awnings on the exterior or roof of the building nor upon the stairs, nor in the hallways or vestibules nor upon the entrance doors or windows of the premises herein leased, without the written consent of the lessor first had and obtained. The lessee shall not be allowed to use the name of the building in which the demised premises are located or words to that effect in connection with any business carried on in said premises (except as the address of the lessee) without the written consent of the lessor. Lessor reserves the right to change the name and title of the building at any time during the term of said lease. The lessee hereby expressly agrees to such change at the option of the lessor and waives any and all damage occasioned thereby. 17. If the building in which the herein demised premises is situate shall be damaged or destroyed by fire, the lessee shall give immediate notice thereof to the lessor and the lessor shall forthwith repair the same, provided such repairs can be made within thirty (30) days by working in the usual and ordinary manner and under the laws and regulations of State, County or Municipal authorities, but such destruction or damage shall in nowise annul or void this lease, except that the lessee shall be entitled to a proportionate deduction of rent while such repairs are being made, such propor- tionate deduction to be based upon the extent to which the making of such repairs shall interfere with the business carried on by the lessee in the said premises. If such repairs cannot be made in said manner in thirty (30) days, tha lessor may, at his option, make same within a reasonable time, this lease continuing in full force and effect, but the lessee shall be entitled to a proportionate deduction of rent while such repairs are being made as hereinabove provided. In the event that the lessor does not so elect to make such repairs which cannot be made in said manner in thirty (30) days, or such repairs cannot be made under such laws and regulations, this lease may be terminated at the option of either party. 18. Lessee agrees that this lease is and shall be subordinate to any mortgage, deed of trust or other instruments of security which has been or shall be placed on the land and building or land or building of which the demised premises form a part and such subordination is hereby made effective without any further act by lessee. 19. The exercise of any right or option or privilege hereunder by lessor shall not exclude lessor from exercising any and all other rights, privileges and options hereunder and lessor's failure to exercise any right, option or privilege hereunder shall not be deemed a waiver of said right, option or privilege nor shall it relieve lessee from lessee's obliga- tion to perform each and every covenant and condition on lessee's part to be performed hereunder nor from damages or other remedy for failure to perform or meet the obligations of this lease. 20. In case there be more than one lessee the obligation of lessees executing the within lease shall be joint and ` several. 21. The covenants and agreements contained in this lease shall be binding upon the parties hereto and upon their respective heirs, executors, administrators, successors and assigns. t 22. Time is of the essence of this lease and of each and every of the provisions herein contained. 23. If any part of the demised premises shall be taken or condemned for a public or quasi -public use, and a part thereof remains which is susceptible of occupation hereunder, this lease shall, as to the part so taken, terminate as of the date title shall vest in the condemnor, and the rent payable hereunder shall be adjusted so that the lessee shall be required to pay for the remainder of the term only such portion of such rent as the value of the part remaining after condemnation bears to the value of the entire premises at the date of condemnation; but in such event lessor shall have the option to terminate this lease as of the date when title to the part so condemned vests in the condemnor. If all of the demised prem- ises, or such part thereof be taken or condemned so that there does not remain a portion susceptible for occupation here- under, this lease shall thereupon terminate. If a part or all of the demised premises be taken or condemned, all compensa- tion awarded upon such condemnation or taking shall go to the lessor and the lessee shall have no claim thereto, and the lessee hereby irrevocably assigns and transfers to the lessor any right to compensation or damages to which the lessee may become entitled during the term hereof by reason of the condemnation of all or a part of the demised premises. The lessee shall be liable for all taxes levied against personal property and trade fixtures placed by lessee in, on or about the herein demised premises, including but without prejudice to the generality of the foregoing shelves, counters, vaults, vault doors, wall safes, partitions, fixtures, machinery, printing presses, plant equipment and atmospheric coolers, and if any such taxes on lessee's personal property or trade fixtures are levied against the lessor or lessor's property, and if lessor pays the same, which lessor shall have the right to do regardless of the validity of such levy, or if the assessed value of the lessor's premises is increased by the inclusion therein of a value placed on such property of lessee and if lessor pays the taxes based on such increased assessment, which the lessor shall have the right to do, regardless of the validity thereof, lessee, upon demand shall, as the case may be, repay to lessor the taxes so levied against lessor, or the proportion of such taxes resulting from such increase in the assessment. IN WITNESS WHEREOF the said parties hereto have subscribed their names and affixed their seals, in dupli- cate, the day and year first hereinabove written. BAN& OF AMERICA NATIONAL TRUST -AND l 19yB .___•___••............. .. ............................PA o.r---..____............ ------- •------------------- ,__.......... ............ ..a..y •__ - y. .............. -{Kie�ir. J. ........ Lessee t J iJY Lessor z o a d al d � z PM y `' ta C) i C7? i Provided the lessor elects to use all or any portion of the herein idesed premises in connection iaith the operation of the branch bank situate In the buildir44in which the. herein demised premises are located, the said lessor shall have the right to terminate this lease at any time durin,-_, the term herein granted upon givir4.- to tiie lessee not less than ninety days notice in eiritint,, of its intention so to do, and this lease shall cease, terminate and expire upon the date set forth in said notice in the same manner .and with the same effect as if said lease had expired by the termination of the full term hereof. 25. The lessor has possession of the herein demised premises under and by virtue of that certain lease entered into by and between the -isnom Company, as lessor, and Bank of America National Trust and Savin's AssociRtion, as lessee to which said lease raid the extension thereof, reference is hereby made and the tents, coven -ants and cond'tions thereof are hereby incorporated herein with the same force and effect as though they had been set forth at length, and the lessee herein does hereby agree tht all of i L s rit-,.hts hereunder sh.-ail be ' siibject to and that 4 t .A6 a4all be bound by all of the terms, covenants and condItions of said master lease. s 26. Provided the lessee is not in default under any of the term ,* covenants and conditions hereof., it shall have the right to cancel the term of this lease at any time during the term herein granted upon giving to the lessor not less than ninety days notice in of Its intention so to do, P,.L.-J. this lease shall cease, terminate and expire upon the date set forth in said notice in the same manner and with the same effect as if said lease had expired by the termination of the full term hereof; provided, however, that this right of cancellation shall accrue to the lessee only in the event that it acquires and/or erects space for the purpose of housing the department or departments then situated in the demised premises.