RESOLUTION NO. 22-____
Resolution Of The City Council Of The City Of Emeryville Authorizing The City Manager To Execute A Lease With Hong Kong East Ocean Ltd. For 3199 Powell Street (Portion Of APN 049-1525-002-01)
WHEREAS, in October 1971, the City executed a Lease Agreement with Tia Maria, Inc. for the construction, operation and maintenance of a restaurant on the City-owned property at 3199 Powell Street (the “Property”) for the convenience and promotion of commerce, navigation and fishery in Emeryville; and
WHEREAS, Tia Maria, Inc. constructed a 11,823 square foot restaurant building and associated site improvements on the Property pursuant to the Lease Agreement; and WHEREAS, in 1982, Tia Maria, Inc assigned the Lease Agreement to Oceanview Restaurant, Inc., which assignment was approved by the City Council; and WHEREAS, in 1987, Oceanview Restaurant Inc. sought to assign the Lease Agreement to Hong Kong East Ocean Restaurant, Ltd.; and
WHEREAS, the City agreed to approve the assignment of the Lease Agreement if the City and Hong Kong East Ocean entered into a new lease updating, clarifying and modifying the terms of the Lease Agreement; and
WHEREAS, on October 23, 1987, the City entered into that certain Lease between City of Emeryville and Hong Kong East Ocean Ltd. which modified and replaced the Lease Agreement in its entirety (the “Previous Lease”); and
WHEREAS, the Previous Lease term expired October 15, 2022; and WHEREAS, the City wishes to enter into a new lease with Hong Kong East Ocean Restaurant, Ltd. for the continued operation of the restaurant at the Property; and WHEREAS, the City and Hong Kong East Ocean, Ltd. have negotiated the terms and conditions of a new lease; now, therefore, be it
RESOLVED, that the City Council of the City of Emeryville hereby authorizes the City Manager to execute a lease with Hong Kong East Ocean Ltd. for 3199 Powell Street in substantial form as attached to this resolution as Exhibit A; and be it further RESOLVED, that the City Council of the City of Emeryville hereby authorizes the City Manager to execute amendments to the lease as necessary to effectuate its purpose, provided such amendments do not materially increase the City’s obligations thereunder.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 Resolution No. 22-___
Lease of 3199 Powell Street to Hong Kong East Ocean Ltd.
City Council Meeting | October 18, 2022
ADOPTED by the City Council of the City of Emeryville at a regular meeting held Tuesday, October 18, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
MAYOR
APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Eme1yville
City Hall
1333 Park Avenue
Emeryville, California 94608
Attn: John Kennedy, City Attorney
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §6103 27383
APN: 049-1525-002-01
Space above this line for Recorder's use.
DOCUMENTARY TRANSFER TAX IS:
$0.00. Exempted under Rev. & Tax. Code §
11911 rLease less than 35 years l
LEASE AGREEMENT
This Lease Agreement ("Agreement") is made ______ , 2022 between the City of Emeryville, a California municipal corporation ("Lessor'') and Hong Kong East Ocean Restaurant, Ltd., a California corporation ("Lessee"), collectively referred to herein as the "Pa.-ties" or singularly as "Party."
RECITALS
WHEREAS, Lessor is the owner of real property and improvements, inclusive of the 11 ,823 square foot restaurant building, located at 3199 Powell Street, Emeryville, California, identified as a 0.578 acre portion of the parcel bearing APN: 049-1525-002-01, and more particularly described in Exhibit A, attached hereto and incorporated by reference (the "Premises"); and
WHEREAS, Lessor and Lessee were parties to a prior lease for the Premises entered on October 23, 1987 and expiring on October I. 5, 2022 ("Prior Lease"); and WHEREAS, during the term of the Prior Lease, Lessee operated and maintained the Premises as a major, first-class, full-service restaurant and cocktail lounge with facilities for a catering service for the convenience, accommodation, and promotion of commerce, navigation, and fishery in the Eme1yville Marina; and
WHEREAS, Lessee desires to continue the operation and maintenance of a major, firstclass, full-service restaurant and cocktail lounge with facilities for a catering service at the Premises; and
Exhibit A
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 WHEREAS, Lessor and Lessee desire to enter into this Agreement, that the lease of the Premises will be pursuant to the provisions stated in this Agreement, and that this Agreement replaces the Prior Lease in its entirety; and
NOW, THEREFORE, the Parties, intending to be legally bound hereby and in consideration for the mutual promises and covenants contained herein and for other good and valuable consideration, agree as follows:
AGREEMENT
1. LEASE OF PREMISES
1 . I . Agreement to Lease. Lessor agrees to lease the Premises to Lessee. Lessee agrees to lease the Premises from Lessor.
1.2. Purpose of Lease. The Parties acknowledge and agree that that the primary purpose of this Agreement is the convenience, accommodation, and promotion of commerce, navigation, and fishery in, to, and from the Emeryville Marina. Lessee covenants to use its best efforts to accommodate the needs of persons engaged in commerce, navigation, and fishery in, to, and from the Emeryville Marina.
2. USE OF PREMISES
2.1. Pe1mitted Uses. The Premises shall be used only as a major, first-class, fullservice restaurant and cocktail lounge, and other complementary associated facilities subject to Lessor's sole approval, for the convenience, accommodation, and promotion of commerce, navigation, and fishery in, to, and from the Emeryville Marina (the "Permitted Use").
2.2. Change of Use. Any change in the Permitted Use shall constitute a breach of this Agreement by Lessee.
2.3. Continuous Operation. Subject to any force majeure, condemnation, closw-es for remodeling or repairs in accordance with Sections 8, 9, 13, and 14 herein, actions and causes beyond the control of Lessee, and except while the Premises is not occupiable by reason of fire or other unavoidable casualty, Lessee shall continuously use, occupy and operate the Premises solely for Lessee's Pennitted Use and for no other purpose. If any governmental license or pennit shall be required for the proper and lawful conduct of Lessee's Permitted Use, then Lessee, at Lessee's expense, shall procure and maintain such license or pe1mit. Lessee shall be open and operating for service oflunch and dinner a minimum of five (5) days per week with a minimum of six (6) hours per day, three hundred sixty (260) days per year.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
3. 2.4. At all times, Lessee will cany a full and complete stock of merchandise for sale, charge reasonable rates or costs for merchandise and services at the Premises consistent with rates and costs for similar merchandise or services by similar enterprises in the San Francisco Bay Area, and will employ adequate staff for the efficient service of customers. Lessee shall operate the restaurant in a manner calculated to produce the maximum profitable volume of business and to enhance the reputation and attractiveness of the Emeryville Marina.
2.5. No Hazardous Materials. Lessee shall not bring any "Hazardous Materials" (as defined in Exhibit B attached hereto) onto the Premises, except for those normally and typically incidental to the Permitted Use and only in quantities suitable for immediate use.
2.6. Use Inconsistent with Pennitted Use. If at any time during the Tenn of this Agreement the City Council of the City of Emeryville detennines by resolution that the purposes of this Agreement ( convenience, accommodation, and promotion of commerce, navigation, and fishery in, to, and from the Emeryville Marina) are inconsistent with public convenience and necessity, and that the Premises shall not be used for said purposes during the remainder of this Agreement, then Lessor sha ll have the right to terminate this Agreement upon one (I) year written notice to Lessee. In the event of tennination of this Agreement in accordance with this Section, Lessor shall be under no obligation to restore the Premises to the conditions which ex.isted at the commencement of this Agreement nor to demolish, destroy, or remove any improvement or structure situated upon the Premises.
TERM
3. l. Term. The tenn of this Agreement is five (5) years ("Term"), commencing October 16, 2022 (the "Commencement Date") and expiring October J 6, 2027.
3.2. No Option to Extend. The Pa11ies acknowledge and agree that there is no option to extend the lease of the Premises under this Agreement.
4. RENT
4.1. Rent. "Rent" to be paid by Lessee for the Premises shall be comprised of Base Rent and Percentage Rent.
4.1.1. Base Rent. The Base Rent to be paid by Lessee for the Premises (the "Base Rent") shall be one hundred forty four thousand dollars ($ 144,000) per year, which shall be due and payable by Lessee to Lessor in equal monthly installments of twelve thousand dollars($ I 2,000) on or before the first day of the first month fo llowing the Commencement Date, and thereafter on or before the first day of each month, in advance, without setoff or deduction except the Percentage Rent. Should the DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 Commencement Date occur on a day other tban the first day of a calendar month, then the Base Rent for such partial month shal I be prorated on a daily basis based on the number of days in such month.
4.1.2. Percentage Rent. Lessee shall pay to Lessor monthly "Percentage Rent" in excess of the monthly Base Rent for each calendar month during which Lessee occupies the Premises. Each monthly installment of Percentage Rent throughout the Tenn shall be equal to a certain percentage of Monthly Gross Receipts during the month immediately prior to the month in which such installment becomes due, less the monthly Base Rent. The monthly Percentage Rent shall be paid within ten (10) days of the end of each calendar month, with an accompanying Monthly Statement of Gross Receipts, as defined in Section 5.3 below.
From the Commencement Date until September 30, 2024, the Percentage Rent shall be four and one-half percent ( 4.5%) of Monthly Gross Receipts. From October 1, 2024 until September 30, 2026, the Percentage Rent shall be five and one-qua11er percent (5.25%) of Monthly Gross Receipts. From October 1, 2026 until October 16, 2027 the Percentage Rent shall be six percent (6%) of Monthly Gross Receipts.
"Monthly Gross Receipts" shall mean the entire amount of the sales prices of all goods and merchandise sold (including gift and merchandise certificates when redeemed), and the charges for all se1vices and all other receipts in, on or from any part of the Leased Premises, whether for cash or credit, and shall include telephone and online orders received or fil led at the Premises, orders taken from the Premises, although the orders may be filled elsewhere, and all monies or other things of value which Lessee is entitled to receive from the sale of all goods and merchandise from the Premises. The following shall be deducted or excluded, as the case may be, from Monthly Gross Receipts: (a) refunds to customers; (b) sales, use, excise, retailer's, occupation, alcoholic beverage or similar taxes imposed in a specific amount, or percentage upon, or detennined by, the amount of sales if actually paid to the taxing authority; and (c) returns to shippers and manufacturers.
Lessee recognizes that Lessor views Percentage Rent as a substantial part of the rent for the Premises and the Lessee has a duty to Lessor to maximize Lessee's Monthly Gross Receipts.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
4.2. Payment of Rent. Lessee shall cause Rent to be delivered within the applicable time periods in Sections 4.1.1 and 4. 1.2 to Lessor at:
Finance Department
City ofEme1yville
City Hall
1333 Park A venue
Emeryville, California 94608
4.3. Late Charge. Lessee acknowledges that late payment by Lessee to Lessor of Base Rent or Percentage Rent will cause Lessor to incur costs not contemplated by this Agreement, the exact amount of such costs being extremely difficult and impracticable to detennine. Such costs include, without limitation, processing and accounting charges, and late charges that may be imposed on Lessor by the tem1s of any encumbrance and note secured by any encumbrance covering the Premises.
Therefore, if any installment of Rent due from Lessee is not received by Lessor when due, Lessee shall pay to Lessor an additional sum of five percent (5%) of the overdue monthly Rent as a late charge after the fifth day of the due date; provided, however, if the Rent is not paid within fifteen (I 5) calendar days of the due date, Lessee shall pay to Lessor a sum of ten percent (I 0%) of the overdue monthly Rent as a late charge. The Parties agree that these late charges represent a fair and reasonable estimate of the costs that Lessor will incur by reason of late payment by Lessee.
5. MAINTENANCE AND INSPECTION OF RECORDS
5.1. Maintenance of Financial Records. Lessee shall keep on the Premises true and complete financial records and accounts of its business operation, which shall be made available to Lessor upon reasonable notice. Lessee sllall use regularly accepted accounting principles and procedures in the preparation of its financial records and accounts.
5.2. Audit. Lessor shall have the right, from time to time, upon reasonable prior written notice to Lessee, to cause a complete audit of all statements of Monthly Gross Receipts and in connection with such audit to examine Lessee's books of account and records of Lessee's Monthly Gross Receipts from the Premises; and Lessee shall make all such records available to Lessor for such examination. In the event the audit discloses that the Monthly Gross Receipts repo11s are inaccurate, Lessor and Lessee shall make the appropriate adjustments to the end that Lessor shall receive the full Percentage Rent to which it is entitled. Lessor shall pay all costs and expenses of such audit, unless the audit discloses actual Monthly Gross Receipts of more than two percent (2%) in excess of the Monthly Gross Receipts reported by Lessee for any one year, in which case Lessee shall reimburse Lessor DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 the reasonable cost and expenses paid by Lessor for said audit, in addition to the deficiency in Percentage Rent.
5.3. Monthly Statement of Gross Receipts. Within ten (10) days after the end of each calendar month of the Tem1, Lessee shall furnish to Lessor a statement in writing certified by an executive officer of Lessee to be correct, showing the total Monthly Gross Receipts during the preceding calendar month, and shall accompany each such statement with a payment to Lessor equal to the Percentage Rent due with respect to said month.
5.4. Annual Statement of Gross Receipts. Within sixty (60) days of the end of each Fiscal Year, Lessee shall furnish an audited annual statement of gross receipts as a verification of the proper monthly Rent paid during the previous year. For the purposes of this Section, "Fiscal Year" means July 1 to June 30.
6. TAXES AND ASSESSMENTS
6.1. Personal Property Taxes. Lessee shall pay before delinquency all taxes, assessments, license fees and other charges ("Taxes") that are levied and assessed against Lessee's personal property installed on or located on the Premises, and that become payable during the Term. On demand from Lessor, Lessee shall furnish Lessor with satisfactory evidence of these payments. If any taxes on Lessee's personal property are levied against Lessor, or if the assessed value of the Premises is increased by the inclusion of a value placed on Lessee's personal prope1ty, and if Lessor pays the taxes on any of these items or the taxes based on the increased assessment of these items, Lessee, on demand, shall immediately reimburse Lessor for the sum of the taxes levied against Lessor, or the prop01tion of the taxes resulting from the increase in Lessor's assessment. Lessor shall have the right to pay these taxes regardless of the validity of the levy.
6.2. Real Prope1ty Taxes. Lessee shall pay all real property taxes and general and special assessments ("Real Property Taxes") levied and assessed against the Premises. Lessor shall use its best efforts to cause the tax bills to be sent directly to Lessee from tbe tax collector. Lessee shall pay the real property taxes prior to delinquency.
6.2. I. Increases in Taxes. Lessee shall pay all increases in real property taxes and general and special assessments, whether the increases result from increased rate or valuation levied and assessed against the Premises, over and above those real property taxes levied and assessed against the Premises for the base year, which is 1987-1988.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
6.2.2. Separate Assessment of Premises. Lessor shall use its best efforts to cause the Premises to be separately assessed from other real property owned by Lessor. If Lessor is unable to obtain a separate assessment, the assessor's valuation placed on the Premises and improvements, that are a pa1t of the Premises shall be used in determining the real property taxes. If this valuation is not available, the Parties shall equitably allocate the Real Prope1ty Taxes between the Premises and improvements that are a part of the Premises from all real property included in the tax bill.
7. CONDITION OF PREMISES
7.1. Condition of Premises at Commencement of Tem1. Lessee takes Premises in "asis" condition. Lessor shall not be responsible for any preparation of the Premises.
Lessee's taking of possession of the Premises on commencement of the Term shall constitute Lessee's acknowledgement that the Premises is in good condition.
7.2. Condition of Premises at Expiration of Term. Upon expiration of the Tenn, Lessee shall su1Tender to Lessor the Premises and all Lessee's improvements and permitted alterations in as good condition as delivered, ordinary wear and tear excepted.
Lessee shall remove all of its personal property and shall perfonn all restoration made necessary by removal of such personal prope1ty prior to the expiration of the Term.
Lessee shall remove, unless otherwise in default under this Agreement, Lessee's goods, wares, inventory, merchandise, trade fixtures, furniture, accessories, and signage located on or within the Premises ("Lessee's Property") not later than the expiration of the Tenn or tennination of this Agreement. For the purposes of this Section, Lessee's Property does not include kitchen equipment and trade fixtures that are physically attached to the Premises. The Premises shall be delivered clean, with all equipment in working order and pest free. Title to any of Lessee's Property remaining in or on the Premises or the improvements after such date shall be vested in Lessor without further act or instrument. If Lessee fails to remove Lessee's Property as required, Lessor may remove, sell or destroy them at Lessee's expense. Lessee shall bear the reasonable cost of any repair to the Premises as a result of removal, sale or destruction of the trade fixtures.
Lessor may deem abandoned any real or personal property remaining on the Premises after Lessee's departure. Lessor may remove and sell any abandoned property and retain the proceeds from any such sale.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
8. MAJNTENANCE AND REPAIR OF PREMISES
8.1 . Lessee's Duty to Maintain. Lessee covenants and agrees, throughout the Term, without cost to Lessor, to take good care of the Premises and to maintain the same in good order and condition. Lessee shall promptly, at Lessee's own cost and expense, make all necessary repairs, interior and exterior, structural and nonstructural, ordinary as well as exn·aordinary, whether contemplated or not contemplated at the time of execution of this Agreement, and shall keep the Premises in a well maintained, safe, clean, and sanitary condition. Lessor shall not have any responsibility to maintain the Premises, except for maintenance of sufficient rip-rap material on the shoreline adjacent to the Premises to protect the landfill.
8.2. Repairs. The tenn "repairs" shall include replacements or renewals when necessary, and all such repairs made by Lessee shall be at least equal in quality and class to the original work. Lessee waives any rights created under any law now or hereafter in force to make repairs to the Premises at Lessor's expense. If Lessee constructs, enlarges, alters, repairs, moves, demolishes or changes the occupancy of a building or structure, or erects, installs, enlarges, alters, repairs, removes, conve11s or replaces any electrical, gas, mechanical or plumbing system, the installation of which is regulated by the California Building Code, or causes any such work to be perfotmed, Lessee shall submit an application to the City of Emeryville for a Building Pennit and obtain the required Building Permit. Lessee shall keep and maintain all po11ions of the Premises and the sidewalks adjoining the same in a clean and orderly condition, free of accumulation of dirt, rubbish, and graffiti.
8.3. Right of Enny and Inspection of Premises. From time to time during the Term, upon not less than forty-eight ( 48) hours prior notice from Lessor, Lessor may enter the Premises, or portions thereof, to detennine if Lessee is properly maintaining the Premises. If, following any such inspection by Lessor, Lessor delivers notice of any deficiency to Lessee, Lessee shall promptly prepare and deliver to Lessor Lessee's proposed plan for remedying U1e indicated deficiencies, and complete the remedial work within thirty (30) days of Lessor's notice. If, within thirty (30) days ofreceipt of notice, Lessee fails to complete such repairs or maintenance, or to commence diligently and continuously perfonn such repairs or maintenance (if they cannot be reasonably perfonned within 30 days) Lessor may make or cause to be made the necessary repairs or maintenance and include the cost thereof on the following monthly Rent.
8.4. Failure to Remedy. Lessee's failure to deliver a remedial plan and to complete, within a reasonable time, any remedial work shall be a default under this Agreement. Lessor's failme to deliver, following any Lessor's inspection, any notice of deficiency to Lessee, shall not be a waiver of any default by Lessee under DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 this Section. Lessee shall defend, indemnify and hold Lessor hannless from and against any claim, loss, expense, cost, or liability incurred by Lessor arising out of Lessee's failure to folly and timely fulfill its obligations to maintain and repair the Premises as required by this Section.
8.5. Parking Lot. Lessee shall maintain the cleanliness of the parking lot located on the Premises ("Parking Lot"). Lessor shall be responsible for any necessary resurfacing or restriping of the Parking Lot, provided Lessee notifies Lessor sixty (60) days in advance and Lessor detennines such resurfacing and restriping is necessary. Lessor shall maintain in good order the Parking Lot's lighting facilities.
8.6. Landscaping. Lessee shall maintain all landscaping in and around the Premises.
9. ALTERATIONS TO PREMISES
9.1 . Consent Required for Alterations. Lessee shall not make any Alterations to the Premises without Lessor's prior written consent, which shall not be unreasonably withheld. For the purposes of this Section, "Alterations" means: (1) any new buildings, strnctures or outdoor facilities to be located on the Premises, (2) any substantial alterations, remodeling, or rehabili tation of existing buildings, structures, or outdoor facilities, (3) construction of additional spaces or facilities, ( 4) any other alteration, construction, remodeling or reconstruction with a cost in excess of Fifty Thousand Dollars ($50,000). Any Alterations made shall remain on, and be stmendered with, the Premises on expiration or te1mination of this Agreement. If Lessee makes any approved Alterations to the Premises, such Alterations shall not be commenced until thfrty (30) days after Lessor has received notice from Lessee. Such notice shall state the date the Alterations are to commence, so that Lessor can post and record an appropriate notice of nonresponsibility.
9.2. Exterior Improvements and Signage. Exterior improvements to signage on the Premises shall be approved in advance by the City of Emeryville's Planning Commission, in accordance with the procedures and criteria of the City of Emeryville's design review and sign ordinances.
10. LESSOR'S ENTRY ONTO PREMISES
l 0.1. Lessor and its authorized representatives shall have the right to enter the Premises at all reasonable times for any of the following pmposes:
a. To determine whether the Premises is in good condition and whether Lessee is complying with its obligations under this Agreement; b. To do any necessary maintenance and to make any restoration to the Premises that Lessor has the right or obligation to perform; DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 c. To construct, maintain, replace, or add utility facilities, including but not limited to, sanitary sewer mains, storm drain mains, gas mains, water mains, telephone, and electrical distribution facilities; d. To serve, post, or keep posted any notices required or a llowed under the provisions of this Agreement;
e. To post "For Sale" or "For Lease" signs at any time during the Tenn; f. To show the Premises to prospective brokers, agents, buyers, tenants or persons interested in an exchange, at any time during the Tenn; and g. To conduct investigations, studies, research, testing and inspections related to future use of the Premises.
10.2. Lessor shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of Lessor's entry on the Premises as provided in this Section, except damage resulting from the acts or omissions of Lessor or its authorized representatives.
I 0.3. Lessee shall not be entitled to an abatement or reduction of Rent if Lessor exercises any rights reserved in this Section, except to the extent the exercise of such rights precludes Lessee from using the Premises. Lessor shal I conduct its activities on the Premises as allowed in this Section in a manner that will cause the least possible inconvenience, annoyance, or disturbance to Lessee.
11. INSURANCE
11.1 . At Lessee's sole cost and expense and commencing on the Commencement Date and continuing throughout the Tenn, Lessee shall keep and maintain in full force and effect policies of insurance pursuant to and in accordance with the requirements set fo11h in thjs Section. Lessor shall review and update the insurance requirements no more often than every two (2) years during the Tenn and shall provide to Lessee written notice of the updated insurance requirements.
I I . I . I. General Liability. Lessee and any contractors working on behalf of Lessee at the Premises shall maintain a commercial general liability policy in the amount of One Million Dollars ($ 1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate, together with Three Million Dollars ($3,000,000) excess liability coverage, or such other policy limits as Lessor may require in its reasonable discretion, including coverage for bodily injury, property damage, products, completed operations, and contractual liability coverage. Such policy or policies shall be written on an DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 occurrence basis and shall name the City of Emeryville and its elected and appointed officials, officers, employees, and agents as additional insureds.
11. 1.2. Automobile Insurance. Lessee and all contractors working on behalf of Lessee shall maintain a comprehensive automobile liability coverage in the amount of Two Million Dollars ($2,000,000), combined single limit including coverage for owned and non-owned vehicles and shall fumish or cause to be furnished to Lessor evidence satisfactory to Lessor that Lessee and any contractor with whom Lessee has contracted for the performance of work on the Premises carries workers' compensation insurance as required by law. Automobile liability policies shall name the City of Emeryville and its elected and appointed officials, officers, employees, and agents as additional insureds.
I 1.1.3. Property Damage and Loss. Lessee shall maintain property insurance covering all 1isks of loss (other than earthquake), including flood (if required) for 100% of the replacement value of the improvements on the Premises with deductible, if any, in an amount acceptable to Lessor, naming Lessor as loss payee.
11 .1.4. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A-VII.
I l .1.5. If any insurance policy or coverage required hereunder is canceled or reduced, Lessee shall, within fifteen (15) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancel.lation or reduction, file with Lessor a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, Lessor may, without further notice and at its option, procure such insurance coverage at Lessee's expense, and Lessee shall promptly reimburse Lessor for such expense upon receipt of billing from Lessor. Failure to file such certificate shall also constitute an event of default.
11.1.6. Coverage provided by Lessee shall be primary insurance and shall not be contributing with any insurance, or self-insurance maintained by Lessor, and the policies shall so provide. The Lessee's full insurance limit, including limits that exceed the requirements of this Agreement shall be available to cover claims against the Lessor. The insurance policies shall contain a waiver of subrogation for the benefit of the Lessor. Lessee shall furnish the required certificates and endorsements to Lessor prior to DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 execution of this Agreement, and shall provide Lessor with certified copies of the required insurance policies upon request of Lessor.
12. INDEMNIFICATION
12.1. Lessee shall indemnify, defend, protect, save, and hold hannless Lessor and its elected and appointed officials, officers, employees, and agents (all of the foregoing, collectively the ''lndemnitees") from and against any and all claims, liabilities, losses, damages, fines, penalties, demands, suits, actions, causes of action, judgments, judicial or administrative proceeding, deficiency, order, costs and expenses (including without limitation reasonable attorney's fees and court costs) (all of the foregoing, collectively "Claims") which directly or indirectly, in whole or in pa1t, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in c01mection with, or relate to: the construction, renovation, use, operation, or management of, the Premises or the improvements thereon; any breach or default on the part of Lessee in the performance of any covenant or agreement to be perfo1med by Lessee pursuant to this Agreement; any negligence of Lessee or any of its agents, contractors, employees, sub lessees or licensees; any accident, injuiy or damage caused to any person in or on the Premises or the improvements thereon; the furnishing of labor or materials by, to, or from Lessee; or the failure to comply with any applicable laws (including, without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781 ); whether or not any insurance policies shall have been detennined to be applicable to any such Claims.
12.2. Lessee shall at all times indemnify, defend, protect, save, and hold hanuless Lessor from any and all claims for labor and materials in com1ection with the construction, repair, alternation, or installment of structures, improvements, equipment, fixtures, or facilities at, in, or on the Premises, and from the cost of defending against such claims, including without limitation reasonable attorney's fees and cotu·t costs.
12.3. It is fwther agreed that Lessor does not and shall not waive any 1ights against Lessee which Lessor may have by reason of this indemnity and hold hatmless agreement because of the acceptance by Lessor, or Lessee's deposit with Lessor of any of the insurance policies described in this Agreement. Lessee's indemnification obligations set forth in this Section sha ll not apply to Claims arising solely from the gross negligence or willful misconduct of the Indemnitees.
12.4. Lessee's obligation to indemnify, as set forth in this Section, are in addition to, and shall not be limited by, any additional obligation to indemnify the Lessor pursuant to any other agreement between the parties, or any approval provided by the Lessor to the Lessee in connection with the Premises in the Lessor's capacity as a DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 governmental authority. The provisions of this Section shall survive expiration of the Term or other termination of this Agreement, and shall remain in full force and effect and arc not limited by the amount of insurance as may be required.
13. DAMAGE OR DESTRUCTION
I 3. I. Damage and Destruction. Lessee shall have the right to terminate the Lease in any of the following instances, provided that Lessee shall fulfill its obligations under Section 13.3 herein to pursue and collect all valid claims and provide all resultant proceeds to Lessor:
a. If the Premises is destroyed or damaged by fire or any other cause during the Tenn such tbat the Premises is totally unusable and the insurance proceeds are insufficient to cover the actual cost of reconstruction; b. If the Premises is damaged by fire or any other cause during the Term and uninsured damage exceeds one hundred thousand dollars ($100,000) in estimated restoration costs; or
c. 1f the Premises is destroyed or damaged by fire or any other cause within the last twelve (12) months of the Lease Term.
13 .2. No loss or damage by fire or any other cause resulting in either partial or total destruction of any buildings or other improvements now or hereafter located in, upon or on the Premises, or any fixtures, equipment or machinery used or intended to be used in connection with the Premises shall operate to tenninate this Agreement, or to relieve or discharge the Lessee from the payment of any Rent or other amounts payable under this Agreement, as Rent or otherwise, as and when they become dl.1e and payable, or from the perfonnancc and observance of any of the agreements, covenants and conditions herein contained to be perfonned and observed by the Lessee. Lessee hereby waives the provisions of Section 1932, subsection 2, and of Section 1933, subsection 4, of the California Civil Code, as either or both may from time to time be amended, replaced or restated. Lessee shall promptly repair, or cause the prompt repair of, any damage or destruction caused to tbe Premises and restore the Premises to at least as good a condition as existed prior to the damage or destruction. Lessee's failure to make such full repair and restoration under any conditions in which it has elected or is required so to do shall constitute an event of default under the Lease.
13.3. In the event of any damage or destruction to the Premises, Lessee shall promptly give Lessor written notice of such damage or destruction, setting forth the cause (if known), the date on which such damage or destruction occuned, and the estimated cost of repair and restoration as ce1iified by a professional cost estimator experienced in such matters. Whenever any part of the Premises shall have been DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 damaged or desh·oyed, Lessee shall promptly make proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which Lessee may have against insurers or others based upon any such damage or destrnction.
Except as otherwise provided below, sums of money received as payments for any losses pursuant to said insurance policies shall be used and expended for the purpose of fully repairing or reconstructing the portions of the Premises which have been destroyed or damaged in accordance with the procedures of Sections
13.4 and 13.5 below, unless Lessee has established alternate procedures that, in Lessor's reasonable judgment, will accomplish the use and expenditure of the insurance proceeds to effectuate full repair or reconstruction of the portions of the Premises which have been destroyed or damaged iu a more effective manner than the procedures set forth in Sections 13.4 and 13.5 below.
The provisions of Section 13.6 below shall apply regardless of the procedure employed for the use and expenditure of insurance proceeds.
I 3.4. Within one hundred eighty ( 180) days after the event of damage or destruction, Lessee shall make available to the Insurance Trustee, described in Section 13.5 below, the difference, if any, between the certified estimated cost ofrepair and restoration and the amount of insurance proceeds anticipated to be received for such repair and restoration (such amount is hereinafter refen-ed to as the "Lessee Contribution").
13.5. All proceeds of insurance together with the Lessee Contribution, if any, shall be paid by the Lessee to the Insurance Trustee, which insurance trustee shall be a commercial bank or trust company experienced in such matters and designated by Lessor (the "Insurance Trustee"). The Insurance Trustee shall hold such proceeds in trust and shall disburse same to Lessee as follows: from time to time as the work of restoration progresses, Lessee shall submit to the Insurance Trustee a certificate of Lessee, signed by an authorized officer or representative thereof, and approved by an architect selected by Lessee and approved by Lessor (the "Architect"), which certificate shaJI: (i) accurately describe the work for which Lessee is requesting payment and the cost incuJTed by Lessee in connection therewith, (ii) certify that Lessee has not theretofore received payment for such work, (iii) condition lien releases based upon payment executed by al l persons or entities supplying labor or materials in connection with such work; and (iv) contain or be accompanied by a statement by Lessee that the work for which Lessee is requesting payment has been perfonned substantially in accordance with plans and specifications therefor approved by Lessor.
Within five (5) days after receipt of any such certificate, the Insurance Trustee shall pay to Lessee, from the funds on hand, an amount equal to ninety percent (90%) of the amount of the cost of the work for which Lessee is requesting DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 payment, as shown on such ce1tificate. Upon completion of such work, the remainder of such cost (to the extent of the balance of the funds held by the Insurance Trustee) and all other insurance proceeds held by the Insurance Trustee shall be paid to Lessee within five (5) days after the delivery to the Insurance Trustee of a ce11ificate of Lessee, signed by an authorized officer or representative thereof and approved by the Architect for the work, stating that the work has been completed and setting fo1th the total cost thereof, which certificate shall: (i) contain or be accompanied by a statement by Lessee that the work has been completed substantially in accordance with plans and specifications therefor approved by Lessor; and (ii) be accompanied by either (A) an unconditional waiver or release of mechanics' and materialmen' s liens executed by all persons or entities supplying labor or materials in connection with such work or (B) other evidence reasonably satisfactory to Lessor that the period for filing any such lien has expired and no such lien has been filed, or, if filed, bas been bonded by Lessee to the reasonable satisfaction of Lessor and the fnsurance Trustee. The Insurance Trnstee shall not be required to invest or pay interest on any funds held by such trustee, except in accordance with any agreement between Lessee and the Insurance Trnstcc.
13.6. Lessee shall promptly commence and complete, in a good and workmanlike manner the reconstruction or repair of any part of the Premises damaged or destroyed after (i) Lessor has approved Lessee's plans, drawings, specifications and constrnction schedule for such reconstruction or repair, and (ii) the proceeds of insurance, if any, applicable to such reconstruction or repair have been made available for such purpose.
14. CONDEMNATION/EMINENT DOMAIN
14.1. Total Taking. If either the entire Premises or a substantial and essential portion of the Premises, the taking of which portion materially impairs the use of the Premises then being made by Lessee and renders the remainder of the Premises unsuitable or economically not feasible for such use, as reasonably detennined by Lessee in good faith, is taken under the power of eminent domain during the Te1m, then this Agreement shall tem1inate as of the date of such taking. Lessor and Lessee shall together make one claim for an award for their combined interests in the Premises including all buildings, structures, improvements, and fixtures thereon which are so taken. Such award shall be paid to and divided between Lessor and Lessee in priority as follows:
a. All compensation and damages payable for or on account of the underlying fee title to the Premises including buildings, structures and improvements thereon shall be payable to and be the sole property of Lessor.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 b. All compensation and damages payable for or on account of Lessee's Prope1ty (as defined in Section 7.2 above) shall be payable to and be the sole prope1ty of Lessee.
14.2. Partial Taking Exceeding Twenty Percent (20%) of Floor Area or Parking Spaces. lf less than the entire Premises is taken under the power of eminent domain during the Term, and such taking results in the inability to use twenty percent (20%) or more of the floor area of the restaurant or twenty percent (20%) or more of the parking spaces, Lessee shall have the right to tem1inate this Agreement. Lessor and Lessee shall together make one claim for an award and apportion any award as described in Section 14. l above. If Lessee does not exercise its right to terminate the Lease as described herein, the Base Rent shall be reduced in proportion to the amount of floor area rendered unusable by such partial taking as of the effective date of such taking.
14.3. Other Partial Taking. If less than the entire Premises is taken under the power of eminent domain during the Term and this Agreement is not te1minated as provided in Section 14. l or 14.2 above, then the Lease shall tenninate only with respect to the portion of the Premises taken and the Lease shall continue in fu ll force and effect with respect to the portion of the Premises not taken. Lessee shall, but only to the extent of the amount of the award received, promptly reconstruct and restore the portion of the Premises not taken and the buildings and improvements located on the portion of the Premises not taken as an integral unit of the same general quality and character as existed prior to such taking. Such reconstruction and restoration shall be performed in a good and workmanlike manner and undertaken in accordance with plans and specifications submitted to and approved by Lessor.
All awards or other payments received on account of a partial taking as described in this Section shall be paid to the Insurance Trustee refe1Ted to in Section 13.5 above to be held and disbursed in the same manner as insurance proceeds.
14.4. Temporary Taking. Tf the use of all or any part of the Premises is taken under the power of eminent domain during the Tenn on a temporary basis for a period less than the time remaining after the date of such talcing to the end of the Tenn, then this Agreement shall continue in full force and effect and Lessee shall continue to be obligated to pe1fonn and observe all of the agreements, covenants and conditions on the part of Lessee to be perfom1ed and observed as and when perfonnance and observance is due to the full extent that such agreements, covenants and conditions are physically capable of perfomrnnce and observance by Lessee after such taking. The award payable for or on account of such taking shall be paid to Lessee.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
15. ENCUMBRANCES, ASSIGNMENT OF LEASE, SUBLETTING, LIENS
15.1. Prohibition against Encumbrance of Premises. Lessee shall not encumber the Premises or its leasehold interest by, including, but not limited to, a leasehold deed of tmst or mo11gage, or other security financing interest, lien, or other encumbrance.
15.2. Voluntary Assignment and Subletting. Lessee shall not assign or encumber its interest under this Agreement or in the Premises, or sublease all or any part of the Premises, or allow any other person or entity (except Lessee's authorized representatives) to occupy or use all or any part of the Premises, without first obtaining Lessor's written consent. Such consent is in Lessor's sole and absolute discretion. Any assignment, encumbrance, or sublease without Lessor's consent shall be voidable and, at Lessor's election, shall constitute a default. No consent to any assignment, encumbrance, or sublease shall constitute a further waiver of the provisions of this Section.
15 .2.1. Lessee Corporation. Because Lessee is a corporation, any dissolution, merger, consolidation, change of controlling percentage, or other reorganization of Lessee, or the sale of at least fifty-one percent (51 %) of the value of the assets of Lessee, shall be deemed a voluntary assignment.
The phrase "controlling percentage" means the ownership of, and the right to vote, stock possessing at least fifty-one percent (51 %) of the total combined voting power of all classes of Lessee's capital stock issued, outstanding, and entitled to vote for the election of directors. This Paragraph shall not apply to corporations, the stock of which is traded through an exchange or over the counter.
15.2.2. Lessee immediately and in-evocably assigns to Lessor, by this Agreement, as security for Lessee's obligations under this Agreement, all rent from any subletting of all, or any pa11 of the Premises as pe1mitted by this Agreement, and Lessor, as assignee and as attorney-in-fact for Lessee, or a receiver for Lessee appointed on Lessor's application, may collect such rent and apply it toward Lessee's obligations under this Agreement; except that, until the occun-ence of an act of default by Lessee, Lessee shall have the right to collect such rent.
15.3. Involuntary Assignment. No interest of Lessee under this Agreement shall be assignable by operation of law (including, without limitation, the transfer of this Agreement by testacy or intestacy), provided that in no event shall the Premises be used by the transferee for any other purpose than contemplated by this Agreement.
Each of the following acts shall be considered an involuntary assignment:
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 a. lf Lessee is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or institutes a proceeding under the United States Bankruptcy Code in which Lessee is the bankrupt; or, if Lessee is a pa1inership or consists of more than one person or entity, if any parn,er of the pa1tnership or other person or entity is or becomes bankmpt or insolvent, or makes an assignment for the benefit of creditors; b. If a writ of attachment or execution is levied on this Agreement; or c. If, in any proceeding or action to which Lessee is a party, a receiver is appointed with authority to take possession of the Premises.
15.3. 1. An involuntary assignment shall constitute a default by Lessee, and Lessor shall have the ri ght to terminate this Agreement, in which case this Agreement shall not be treated as an asset of Lessee.
15.3.2. lf a writ of attachment or execution is levied on the Lease, Lessee shall have ten (10) days in which to cause the attachment or execution to be removed. If any involuntary proceeding in bankruptcy is brought against Lessee, or if a receiver is appointed, Lessee shall have sixty (60) days in which to have the i11voluJ1tary proceeding dismissed or the receiver removed.
15.4. Liens. Neither the Lessee nor anyone claiming through the Lessee shall have the right to file mechanics liens or any other kind of I iens on the Premises. The recordation of this Agreement constitutes notice that such liens are invalid.
Further, Lessee agrees to give actual advance notice to any contractors, subcontractors, or suppliers of goods, labor, or services that such liens will not be valid.
16. DEFAULT AND REMEDIES
16.1. Lessee's Default. The occurrence of any of the following shall constitute a default by Lessee:
a. Failure to pay Rent when due.
b. Abandonment and vacation of the Premises (failure to occupy and operate the Premises for ninety (90) consecutive days shall be deemed an abandonment and vacation), except for failures to operate the Premises during Alterations pursuant to Section 9 or reconstruction pursuant to Section 13 and provided the completion of such Alterations or reconstruction are being diligently pursued.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 c. Failure to comply with all applicable ordinances and regulations of the City of Emeryville and State and Federal laws and regulations, including those of the San Francisco Bay Conservation and Development Commission. d. Any voluntary assignment, encumbrance, or sublease without Lessor's consent, or any involuntary assignment, as described in Section 15. e. Failure to perform any other provision of this Agreement if the failure to perfom1 is not cured within thirty (30) days after notice has been given to Lessee. If the default cannot reasonably be cured within thirty (30) days, Lessee shall not be in default of this Agreement if Lessee commences to cure the default within the thirty-day period and diligently and in good faith continues to cure the default.
16.1. I. Notices given under this Section shall specify the alleged default and the applicable Lease provisions and shall demand that Lessee perform the provisions of this Agreement within the applicable period of time, or quit the Premises. No such notice shall be deemed a forfeiture or a te1mination of this Agreement unless Lessor so elects in the notice.
16. 1.2. The purpose of the notice requirements set forth in this Section is to extend the notice requirements of the unlawful detainer statutes of California.
16.2. Lessor's Remedies. Lessor shall have the remedies set forth below if Lessee commits a default. These remedies are not exclusive, but are cumulative, in addition to any remedies now or later allowed by law.
a. Lessee's Right to Possession Not Terminated. Lessor can continue this Agreement in full force and effect, and this Agreement will continue in effect as long as Lessor does not terminate Lessee's right to possession, and Lessor shall have the right to receive all benefits due under this Agreement. b. Te1mination of Lessee's Right to Possession. Lessor can terminate Lessee's right to possession of the Premises at any time that Lessee commits a default that has not been cured. No act by Lessor other than giving notice to Lessee shall tenninate this Agreement. Acts of maintenance, efforts to relet the Premises, or the appointment of a receiver on Lessor's initiative to protect Lessor's interest under this Agreement shall not constitute a tennination of Lessee's right to possession.
c. Lessor's Right to Cure Lessee's Default. Lessor, at any time after Lessee commits a default, can cure the default at Lessee's cost. If Lessor at any time, by reason of Lessee's default, pays any sum or does any act that DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 requires the payment of any sum, the sum paid by Lessor shall be due immediately from Lessee to Lessor at the time the sum is paid, and if paid at a later date shall bear interest at the maximum rate an individual is pennitted by law to charge from the date the sum is paid by Lessor until Lessor is reimbursed by Lessee. The sum, together with interest on it, shall be additional rent.
17. UTILITIES AND SERVICES
17.1. Lessee Responsible for Utilities and Services. Lessee is responsible and will pay for all utilities and services furnished to, or used by it, including but not limited to, gas, electricity, water, telephone service, sewer, and waste collection.
18. NOTICES
18.1. Any notice which is required to be given hereunder, or which either Party may desire to give to the other, shall be in writing and may be personally delivered or given by mailing the same by registered or certified mail, postage prepaid, and addressed as fo llows:
LESSOR: LESSEE:
City of Eme1yville Hong Kong East Ocean Restaurant, Ltd.
City Hall 3199 Powell Street
1333 Park Avenue Emeryville, California 94608
Emeryville, California 94608
Attn: Donna Ngai, CEO
Attn: City Manager & City Attorney
(or such other person and place Lessee may
( or such other person and place Lessor may designate by written notice) designate by written notice)
18.2. Either Party may change its address and designee to receive notices by notifying the other Party of such change in writing. Notice shall be deemed given at the time of personal delivery or after forty-eight ( 48) hours from the time of mailing of such notice by registered or certified mail, postage prepaid, and addressed to the other Party.
19. REPRESENT A TIO NS AND WARRANTIES
19. I. Independent Legal Counsel. Each Party represents, wa1i-ants, and acknowledges that it had the opportunity to consult with independent legal counsel of its own choosing in connection with the negotiation and execution of this Agreement.
19.2. Authority to Enter Agreement. Each Patty represents, watTants, and acknowledges that it has read this Agreement and signs this Agreement freely and voluntarily.
Each individual signing this Agreement represents that he/she/they is authorized to act as agent for, and to bind, the Party indicated to the tenns of this Agreement.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
20. GOVERNING LAW, VENUE, ATTORNEY'S FEES
20.1. This Agreement is made under and shall be govemed by and interpreted in accordance with the laws of the State of California.
20.2. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Cou1t of California in and for the County of Alameda.
20.3. In the event any litigation or proceeding is initiated as a result of any controversy, claim or dispute relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorney's fees and costs.
20.4. If the Parties, based on any litigation filed or proceeding brought by one Party against the other arising out of this Agreement, shall enter into a negotiated settlement prior to final judgment upon such litigation or proceeding, each Party shall be responsible for its own attorney's fees and neither Party shall qualify as a "prevailing party" for purposes of an award of attorney's fees.
21. COUNTERPARTS
21.1. This Agreement may be executed in several counterpa1ts each of which shall be deemed an original, but all of such counterparts shall constitute one such Agreement.
22. ENTIRE AGREEMENT
22.1. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between Lessor and Lessee relating to the subject matter hereof.
22.2. The ten11S of this Agreement shall not be modified or amended except by an instrument in writing executed by each of the Parties hereto.
23. WAIVER
23. l. No breach or default of any provision in this Agreement can be waived unless in writing.
23.2. The wa iver by one Party of performance of any term, condition, or covenant in this Agreement shall not invalidate this Agreement, nor shall it be deemed to be a waiver of any other term, condition, or covenant in this Agreement.
24. SEVERABILITY
24. 1. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision herein and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforceability materially affects the transactions contemplated in this Agreement or the ability of either party to perfonn its obligations under this Agreement.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
25. MJSCELLANEOUS PROVISIONS
25. 1. Time of Essence. Time is of the essence of each provision of this Agreement.
25.2. Corporate Authority. If Lessee is a corporation, Lessee shall deliver to Lessor on execution of this Agreement, a certified copy of a resolution of its Board of Directors authorizjng execution of this Agreement and naming the officer(s) who are authorized to execute this Agreement on behalf of Lessee.
25.3. Headings and Section Titles. The headings and section titles of this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of any provisions of this Agreement and shall not be construed to affect the tenns and provisions of this Agreement or the interpretation or construction of the terms and provisions of thjs Agreement.
25.4. No Presumption Against the Drafter. This Agreement shall be interpreted and construed only by the contents hereof and there shall be no presumption or standard of construction in favor of or against either Party. Neither of the Parties shall be deemed the drafter of this Agreement and the presumption against the drafter under Civil Code section 1654 shall not apply.
25.5. Recitals and Exhibits. All recitals and exhibits refen-ed to herein, and any exhibits or schedules which may from time to time be referred to in any duly executed amendment hereto, are by such reference incorporated herein and shall be deemed a pa1t of this Agreement as if set forth fully herein.
25.6. Days. Unless stated otherwise, "day" or "days" as used herein means calendar days. "Business day" or "business days" as used herein means weekdays, excluding holidays.
25.7. No Joint Venture. The tenu s and provisions of this Agreement shall not cause the Parties hereto to be construed in any manner whatsoever as partners, joint venturers, or agents of each other i11 the pe1fom1ance of their respective duties and obligations under this Agreement.
25.8. Cooperation. Each Party to this Agreement agrees to cooperate by performing any further acts and by executing and delivery any and all additional documents which may be reasonably necessary to carry out the tenns, provisions, duties, and obligations of this Agreement. Each Party to this Agreement agrees that it will not act in any manner whatsoever which would hinder, impede, interfere, or prohibit, or make more onerous or difficult, the perfonnance of the other Pa11y under this Agreement.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 LESSOR: LESSEE: l){)NNA )7 ~ ,4-(
CITY OF EMERYVILLE, a California HONG KONG EAST OCEAN
municipal corporation located in the County of RESTAURANT, LTD., a California Alameda, State of Califomia, acting by and corporation
through its City Manager.
By: _____ _______ _
______ __ , City Manager
By: J){)µfi/U{jJL'--
_______ __, CEO
Dated: , 2022 ------ -- Dated: lo/3:./-;i,.z_ , 2022
APPROVED AS TO FORM:
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracv. or validity of that document.
State of California )
) ss
County of $C\(\ ~\(JO )
, before me, J<!1.lu ~'f(b WI'¼ lA>£CLt \}o'm{::\ ~\~ C... (Name of Notary) l
notary public, personally appeared _\j ___b~C\......,_l\.u,(l)~,__,~~~ .... a""·'- ----------- who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the pcrson(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and conect.
WITNESS my hand and ial seal.
0~~ u~• ,~ < COMM. /; 2349990 ;,,,: ~ •1·, )f. NOTARY PUBLIC • CAUFORtJI/\ g - 'f ' ;;,_ SAN MATEO COUNlY ~ "" Comm Exp. MAR 3, 2025 f
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3 EXH1BIT A
LEGAL DESCRIPTION OF THE PROPERTY
All that certain real property situated in the City of Emeryville, County of Alameda, State of California, described as follows:
BEG INN ING at the intersection of the no11berly line of Powell Street with the westerly limits of State Tidelands as shown on that ce,tain Record of Survey recorded in Book 8 of Maps at Page 14, Alameda County Records; said intersection being distant N 27°23 '04" E, 44.60 feet from Point 1 as shown on said Record of Survey;
Thence West 250.86 feet to the TRUE POINT OF BEGINNING; Thence continuing West, 189.00 feet;
Thence N 00°57'54"E, 175.00 feet;
Thence East 91 . 73 feet;
Thence S 36°02'00" E, 46.32 feet;
Thence S 26°00'00" E, 153 feet to the TRUE POINT OF BEGINNING.
Containing 0.578 acres, more or less.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3
EXHIBIT B - HAZARDOUS MATERIALS
"Hazardous Materials" shall mean any and all (a) substances, products, by-products, waste, or other materials of any nature or kind whatsoever which is or becomes listed, regulated or addressed under any Environmental Laws, and (b) any materials, substances, products, by-products, waste, or other materials of any nature or kind whatsoever whose presence in and of itself or in combination with other materials, substances, products, by-products, or waste may give rise to liability under any Environmental Laws or any statutory or common law the01y based on negligence, trespass, intentional tort, nuisance, strict or absolute liability or under any reported decisions of any state or federal court; and (c) any substance, product, by-product, waste or any other material which may be hazardous or ham1ful to the air, water, soil, environment or affect industrial hygiene, occupational, health, safety and/or general welfare conditions, including without limitation, petroleum and/or asbestos materials, products, by-products, or waste.
"Environmental Laws" shall mean and include all federal, state, and local laws, statutes, ordinances, regulations, resolutions, decrees, and/or rules now or hereinafter in effect, as may be amended from time to time, and all implementing regulations, directives, orders, guidelines, and federal or state court decisions, interpreting, relating to, regulating or imposing .liability (including, but not limited to, response, removal, remediation and damage costs) or standards of conduct or performance relating to industrial hygiene, occupational, health, and/or safety conditions, environmental conditions, or exposure to, contamination by, or clean-up of, any and all Hazardous Materials, including without limitation, all federal or state superlien or environmental clean-up statutes.
DocuSign Envelope ID: ACECB61B-BB2A-4D8D-AF0F-8E9B93547AB3